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Can One Assert Claims of Adverse Possession and/or Acquiescence Against Local Governmental Units?

by Jun 6, 2016

Oftentimes, most governmental units are insulated against claims made against them for a variety of causes of action. However, if you have been using public grounds for over 15 consecutive years in a manner adverse to the interest of the property owner, or they have acquiesced in such use for over 15 years, you may be able to assert such claims if you act quickly and the owner of record is a local governmental unit (such as a township, road commission, and the like).

While the State of Michigan is insulated against such claims, you have until June 19, 2016 to file a complaint asserting such causes of action. After that date, the local governmental unit(s) will enjoy the same protections afforded the State of Michigan.

In order to assert a claim for Adverse Possession against public property, you will have to establish, by clear and cogent proof, that possession of the disputed property has been actual, visible, open, notorious, exclusive, continuous, and uninterrupted for the statutory period of 15 years. You can “tack” on such adverse use by a prior owner(s) if their use was similarly hostile; i.e. without permission and in a manner that is inconsistent with the rights of the true owner.

There are typically 3 types of Acquiescence claims. You can have acquiescence for the statutory period (15 years); acquiescence following a dispute and agreement; and acquiescence arising from the intention to deed to a marked boundary. Usually, most cases fall into the first category, where there was some encroachment for over 15 years on public property and the governmental unit never complained or, by its actions in locating other structures (such as guardrails and other types of infrastructure), respected the boundary lines asserted by the private land owner.

Most of these matters are factually intensive, and will turn on the facts presented. Note, too, that if the local governmental unit “beats you to the courthouse”, then they can assert the same defenses that are available to the State of Michigan and preclude you from asserting an adverse possession or acquiescence claim against them. However, they cannot defeat such claims by simply filing a counter-claim against you once you have commenced litigation.

If you believe you can establish such claims, the clock is ticking. Once June 20, 2016, arrives such claims will be barred. Ignorance of the law is not an excuse. Therefore, if you believe you can establish the requisite elements of either cause of action, time is running out. As they say at most weddings, speak now or forever hold your peace.

While this posting originates from a law office, none of the contents should, in any way, be considered legal advice. If you have not signed a retention letter describing the legal services to be provided and the amount to be paid for such services, you are not a client of this firm.

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