Skip to main content
A Better Partnership
July 01, 2014

Adverse possession of municipal property is only barred when the municipality gets to the courthouse first, says COA

Though there normally is no time-bar to a municipality recovering property, that is only true if the municipality gets to the courthouse first, according to the Court of Appeals' decision in Waisanen v. Superior Township, No. 311200.  The Revised Judicature Act provides that "[a]ctions brought by any municipal corporation for the recovery of the possession of [public grounds] are not subject to [the 15-year] period of limitations."  MCL 6000.5821.  The Court held that this provision only applies if the municipality brings the action.  If a private party sues first, it can take title to property from a municipality through adverse possession or acquiescence.  

In 1971, Kenneth Waisanen purchased property, which abutted First Street, a lake access roadway dedicated to public use.  At the time of purchase, the property contained a break wall which encroached approximately ten feet onto First Street.  Ten years later, Waisanen constructed an addition to his home on the property, which encroached approximately three feet onto First Street.  The encroachments were discovered to the surprise of all parties in 2008, when the defendant, Superior Township, commissioned a survey of the area.  Waisanen filed an action to quiet title to the portion of First Street that contained the break wall and addition.  The Superior counterclaimed for possession of those portions of First Street.  The circuit court granted quiet title to Waisanen, and Superior appealed.
The Court of Appeals focused primarily on the applicability of MCL 600.5821(2), which provides: Actions brought by any municipal corporations for the recovery of the possession of any public highway, street, alley, or any other public ground are not subject to the periods of limitations” (emphasis added).  In particular, the Court looked at whether adverse possession and acquiescence claims are barred by MCL 600.5821(2) when the municipality, as a defendant, has not initiated the legal proceedings, but filed a counterclaim.  Ultimately, the Court reasoned that its holding in Mason v City of Menominee (After Remand), 282 Mich App 525; 766 NW2d 888 (2009), dictated the result.  The Court disagreed with Superior Township's argument that its counterclaim for possession was an “[a]ction brought by” a municipal corporation, observing that the Michigan Court Rules state that there is “one form of action, known as a ‘civil action,’” which is “commenced by filing a complaint with a court.”  MCR 2.102(A)-(B).  Thus, the Court found that the trial court did not err when it held that MCL 600.6821(2) was inapplicable to the present case.  The Court also affirmed the trial court's conclusion that the plaintiff had established all the elements of adverse possession and acquiescence.
Judge Krause filed a concurring opinion agreeing with reasoning employed by the majority, but contending that the majority’s opinion went beyond what was necessary to resolve the matter.

NOTICE. Although we would like to hear from you, we cannot represent you until we know that doing so will not create a conflict of interest. Also, we cannot treat unsolicited information as confidential. Accordingly, please do not send us any information about any matter that may involve you until you receive a written statement from us that we represent you.

By clicking the ‘ACCEPT’ button, you agree that we may review any information you transmit to us. You recognize that our review of your information, even if you submitted it in a good faith effort to retain us, and even if you consider it confidential, does not preclude us from representing another client directly adverse to you, even in a matter where that information could and will be used against you.

Please click the ‘ACCEPT’ button if you understand and accept the foregoing statement and wish to proceed.



+ -