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Michigan Court of Appeals Upholds Trial Court’s Order Rejecting Adverse Possession Claim

17.03.2017 by Law Firm of Seglund Gabe Pawlak Groth & Kelley in Legal Updates, Litigation, Municipal Law, Real Estate Law

In an adverse possession property dispute, plaintiff appealed as of right the trial court’s order granting summary disposition to defendant, Village of Wolverine Lake. The Michigan Court of Appeals affirmed.

Plaintiff and defendant own adjacent parcels of property in a subdivision in the Village of Wolverine Lake.  Plaintiff acquired his parcel, which consisted of lots 114 and 115 in 1992, after which he constructed a five- to six-foot wide berm where the previous owners had maintained a garden. To the southwest of plaintiff’s parcel is a parcel consisting of lots 109-113. Defendant obtained this parcel by quitclaim deed in 1999, subsequently turning it into a public park, plaintiff also began storing his boat on defendant’s property, near the berm he had constructed.  In August of 2014, the Village of Wolverine Lake sent plaintiff a letter informing him that the boat was parked on its property and that any continued trespass would result in a civil infraction. Plaintiff refused to move the boat, and, as a result, defendant issued a citation to Plaintiff.

Plaintiff brought a claim of adverse possession in the circuit court against defendant claiming that he met the statutory 15-year period for adverse possession. The trial court granted defendant’s motion, finding that plaintiff’s claim that he had created, traversed, and maintained the berm did not indicate that he had disseised or deprived the defendant of the land.

“To establish adverse possession, the party claiming it must show clear and cogent proof of possession that is actual, visible, open, notorious, exclusive, continuous and uninterrupted for the statutory period of 15 years, hostile and under cover of claim of right.” Beach v Twp of Lima, 489 Mich 99, 106; 802 NW2d 1 (2011). “The 15-year period begins when the rightful owner has been disseised of the land.” Canjar v Cole, 283 Mich App 723, 731; 770 NW2d 449 (2009). “Disseisin occurs [for purposes of an adverse possession claim,] when the true owner is deprived of possession or displaced by someone exercising the powers and privileges of ownership.” Kipka v Fountain, 198 Mich App 435, 439; 499 NW2d 363 (1993).

Plaintiff argued that his case was distinguishable from Kipka because he parked his boat and vehicles on the disputed property and constructed a driveway and garden on the property.  The Court of Appeals refused to consider the information because it had not been presented to the trial court. The Court of Appeals went on to uphold the trial court’s order granting summary disposition if favor of defendant, holding that plaintiff had presented no evidence that his use of the disputed property was exclusive or hostile, i.e., “inconsistent with the right of the owner, without permission asked or given, that would entitle the owner to a cause of action against the intruder for trespassing.” Mulcahy v Verhines, 276 Mich App 693, 702; 742NW2d 393 (2007).

Michigan Legal Solutions

At Seglund Gabe Pawlak Groth & Kelley, PLC, our real estate attorneys are qualified to represent both the buyers and the sellers in residential and commercial real estate transactions. They have experience in real estate finance and have represented the interests of both borrowers and lenders. Our attorneys also represent landlords and tenants in negotiating and drafting lease documents. Our attorneys can prepare and review all of the documents that are necessary for a real estate transaction to ensure that everything has been drafted properly to protect your interests. In addition, our attorneys are experienced in litigation involving all aspects of the purchase, sale or lease of real property, both at the trial and appellate levels.

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