Do you know where the property line between you and your neighbor is? Is it marked by a fence, a tree, or a rock? Do you just guess as to its actual location? If this sounds like your situation, you may be risking losing part of your property through a doctrine called adverse possession. Or, alternatively, you may be entitling your neighbor to use a portion of your property through the similar doctrine of easement by prescription.

The doctrine of adverse possession is older than the United States. It was first recognized in ancient Rome and later codified by statute in England in 1623. The reasoning for the doctrine was simple. If a landowner was not tilling his land and providing resources for society, then it was deemed the landowner was committing waste. Since the landowner was not using his land for the benefit of society, it was determined that trespassers who did use the land should be given title to the land. As a result, the doctrine of adverse possession was created and still exists today.

As fun as a history lesson can be, this doctrine can have real world implications, including for you. If you own a parcel of land up-north but never visit it, you could be at risk of losing the land due to adverse possession. If you own a cabin on a lake and allow your neighbors across the street to walk across the land to get to the water, you could be at risk of forever having to share that portion of your land due to an easement by prescription.

The elements for a non-property owner to gain title to land through adverse possession in Michigan are the following: (1) Continuous and uninterrupted possession of the land for 15 years, (2) Actual, open, and notorious use of the land, (3) Hostile possession of the land, and (4) Exclusive possession of the land. An easement by prescription contains all of the same elements as those above, except the possession of the land need not be exclusive.

Another common scenario where this may arise is when a fence is on the property line between you and your neighbor. You have always assumed the fence was put in the proper spot when it was erected, but it turns out the fence is 2 feet onto your property. If the elements outlined above are satisfied you may forfeit your interest in these 2 feet and lose ownership of it forever if you do not take action.

The doctrine of adverse possession may be an old rule, but it is still very much enforced today. If you believe the doctrines of adverse possession or easement by prescription could affect you, please contact the real estate attorneys at Shinners & Cook, P.C.