Adverse Possession: Acquiring Legal Title to Property by Squatting

In the last post, I detailed Michigan legislature’s amendments to squatting laws. Essentially, the amendments criminalize squatting in a dwelling and empowers landowners to remove squatters from their land by virtually any method short of a physical confrontation. These amendments are relevant for urban farmers that are currently utilizing property to which they have no legal interest, meaning property that they neither own, lease, or have rights of use.

This leaves urban farmers who have no interest in their land in a bit of a bind. On one hand, acquiring a legal interest in the property being utilized in the form of a lease or license agreement may protect the urban farmer from having their farm demolished by the landowner overnight. On the other hand, if a farmer enters into a legal agreement regarding the property, they will be unable to claim title to the land by adverse possession in the future. Therefore, it is important for urban farmers to be familiar with the basic requirements to how one can obtain legal title to property via adverse possession and to weigh their options and decide whether they want to secure a lesser interest today—either in the form of a lease or license—or hold out and hope to acquire full ownership rights later by way of adverse possession.

Acquiring ownership to property by adverse possession has a long history in Michigan common law.  Since the 19th century, the Michigan Supreme Court has recognized adverse possession as a means for a long-time possessor of real property to acquire legal title to the property at issue. Later, the Michigan legislature recognized the common law doctrine of adverse possession.

Under Michigan law, for one to acquire title to real property by adverse possession, they must meet numerous requirements. There possession must be “actual, continuous, visible, notorious, distinct, and hostile” for a period of at least 15 years. Notably, one does not need to enter land lawfully to be eligible to acquire land by adverse possession; even a trespasser my acquire property under this doctrine. However, a person seeking to acquire title to property by adverse possession must maintain all the above requirements for a period of 15 years. Further, Michigan courts presume title in favor of the true owner and require the possessor to establish every element by clear proof.

The first key elements regarding adverse possession concern the nature of the possession. The law states that possession must be “actual, continuous, visible, and notorious.” Essentially, this means that a possessor must take “acts of ownership…of such character as to openly indicate an assumed control or use such as is consistent with [the] character of land in question.” An act of ownership include, but is not limited to, erecting a fence around the property or cultivating crops upon the property.

However, it is not just the nature of the possession that matters. The possession must also be hostile to the interest of the owner. While this does not mean that the possessor must inform the owner of their act of possession, it does mean that one’s possession must be without permission and against the interest of the owner. If a possessor has previously been granted permission to utilize the property at issue, there must be a distinct and positive assertion of a right hostile to that of the owner, and such assertion must be brought to the attention of the owner. If there has been no previous permission, the possessor need only utilize the property in such a way that it would be clear to the landowner that the use is adverse to their ownership interest.

For urban farmers that are farming property which they have not been granted permission to utilize, it is possible that the farmer may meet the legal requirements for obtaining title to property by adverse possession. In order to do so, the urban farm must be continuously maintained on the property for 15 years. Obviously, this is a long-term strategy for acquiring property and any break in occupation of the property will restart the 15 year occupancy requirement. Further, urban farmers who continue to possess the property at issue despite being told by the landowner to leave may be guilty of a misdemeanor under the Michigan Penal Code. Urban farmers also risk being restricted from accessing their farm, and even risk having their farm destroyed by the landowner, at any point. However, for many urban farmers facing obstacles regarding land acquisition, this is a solution that they must be aware of. Given the increasing amount of land speculation from distant individuals and businesses, it may be possible to acquire title to property via adverse possession. However, such a strategy will not come without risks.




Amendments To Michigan Squatting Laws: What It Means for Urban Farmers

This summer, the Governor signed three bills that made significant amendments to Michigan laws regarding squatter rights. The amendments are the culmination of rising frustration with squatters and the rights afforded to them by our legal system. Local media outlets in Detroit portrayed squatting as an increasing trend in which individuals or entire families move into a home without the consent of the owner and without paying any rent. There has also been a perceived difficulty in getting police to remove squatters under trespass laws, as some squatters present invalid rental agreements to police or claim that they have paid the owner. When this occurs, owners are typically left to start an eviction proceeding, a process that can take months.

The amendments went into effect in the fall with the purpose of remedying the above issues. While clearly aimed at limiting the number of people who squat in homes, the amendments may have an impact on urban farmers that utilize property without permission from the landowner.

The most relevant amendments were to the Judicature Act of 1961 and the Michigan Penal Code.

Public Act 223 of 2014 amended the landlord/tenant provisions of the Judicature Act. Prior to the amendments, a landowner could not unlawfully interfere with the possessory interest of the squatter, which often prohibited a landowner from changing locks or taking other measures to restrict squatters from re-entering the property. Further, the Judicature Act also stated that a property owner could not make entry onto the property by force but only in a peaceable manner. The amendments essentially carve out exceptions that enable private property owners to engage in self-help to remove squatters. Pursuant to the amendments, which can be found at MCL § 600.2918, an owner does not unlawfully interfere with an occupant’s possession if the occupant is a squatter. Therefore, a landowner can interfere with the squatter’s possession of the property by, among other things removing the squatter’s personal property and restricting the squatter’s access to the property. A property owner is also entitled to use force to enter the property if the occupant took possession by squatting, but any forcible entry may not include assaulting the squatter. These amendments enable a property owner to eject a squatter and restrict them from reentering the property without facing legal liability.

Public Act 224 of 2014 amended the Michigan Penal Code to make squatting in a person’s home a criminal offense. Prior to the amendments, penal laws regarding trespassing and breaking and entering were common in lawsuits against squatters. However, following the amendments squatting is a crime in itself. The first offense is a misdemeanor while the second, and any subsequent offense, is a felony.

Of particular concern to urban farmers are the amendments to the Judicature Act. Prior to the amendments, if a landowner wanted to remove a squatter and restrict them from reentering their property, they often had to do so by filing an eviction action. Now the Judicature Act enables landowners to remove squatters themselves. This is important for urban farmers because if one is farming land which they have no legal interest in, their access to the property can be legally restricted at any time by the landowner. Unless one is occupying a building, most urban farming squatters won’t have to worry about being charged under the amended Michigan Penal Code. However, the prospect of losing one’s farm at a moments notice and having no legal recourse should give urban farmers pause.

At the very least, urban farmers should be looking to enter legally binding agreements with landowners that establish a legal right to the land being utilized. This could take the form of either a license agreement, which gives one the right to use the property described but can be terminated at-will, or a lease agreement, which gives one the right to possess the property described. Entering an agreement will restrict an urban farmer from later obtaining ownership of the property by adverse possession. However, as my next post will detail, claiming title by adverse possession is extremely difficult in Michigan. Therefore, it is likely advantageous to enter an agreement to provide at least a semblance of land security.