Corporate Real Estate, Scott Breen

The Charm of Up North: Encroachment, Lot Lines and Trespassing

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""There is often a great deal of emotional and sentimental attachment to family cottages and hunting land.  Since much of this land is located adjacent to lakes and other bodies of water, it is generally the most susceptible to boundary encroachments and trespasses by neighboring property owners (or even strangers).

Cottage property generally produces abnormal lot line configurations due to the desire to provide owners with adequate access to the water.  As a result, it is important to understand the implications of encroachments and trespasses so that you may legally protect your property.  

Michigan law provides that if another person’s land is occupied by a non-owner for at least 15 consecutive years without interruption, the property will be deemed to be owned by the user pursuant to the law of “adverse possession.”  The most common types of encroachments are driveways, sheds, garages, or other types of out-buildings.  If landowners obtain a survey, it is generally easy to determine whether a neighbor has created an encroachment.  Once these property overlaps are uncovered, there are generally two ways to address them.  

First, the landowner may demand that the encroachment be removed.  If the neighbor will not voluntarily remove the structure, the property owner will need to file a lawsuit in circuit court.  Second, the landowner may give “permission” for the continued encroachment.  Since the law of adverse possession requires the showing of “adverse” use, this permission negates adverse possession from occurring.  Any expression of permission should be documented, executed by both parties, and recorded with the register of deeds in the county where the property is located.

Likewise, if a trespasser uses a portion of another person’s land as a trail or other means of access for at least 15 consecutive years without interruption, the property will be subject to a “prescriptive easement.”  Most often, prescriptive easements arise when a neighbor uses property to access a lake/dock or hunting land.  Similar to the law of adverse possession, the owner of the land should either take action to prevent the access (e.g. lawsuit or the erection of signs and fences) or provide the trespasser with permission.  Again, any permissive use of property should be done in writing and signed by all parties involved.

Once property is occupied or used by a non-owner for 15 consecutive years, a permanent right will be created in favor of the person who was previously encroaching or trespassing.  It is also important to understand that the 15 consecutive years may begin to be calculated prior to your ownership.  Therefore, obtaining surveys and conducting other due diligence is highly recommended before purchasing real estate. This will allow you to make informed decisions and understand all potential property rights.