Be Proactive to Protect School Property

School officials must proactively protect public property from “squatters.” The Michigan Court of Appeals recently ruled that the statutory protection from adverse possession or acquiescence claims ap­plies only when the municipal corporation initiates a lawsuit to protect public property, and not as a de­fense to a claim brought against the municipal corporation. Waisanen Family Trust v Superior Twp, 305 Mich App 719 (2014).

In 1971, Ken Waisanen bought property that abutted a lake access road. The property had a break wall on it. Ten years later, Waisanen built an addition to his home on the property. In 2008, the Township surveyed all of the lake access roadways and discov­ered that the break wall encroached 10 feet and the home addition encroached 3 feet onto the public road. Waisanen filed a quiet title action as to the portion of the public road that included the break wall and the home, claiming title to the property by adverse pos­session or acquiescence. The Township filed a counterclaim.

To establish adverse possession of property, a claimant’s possession of the property in question must have been “actual, visible, open, notorious, exclusive, hostile, under cover of claim or right, and continuous and uninterrupted” for the statutory period of 15 years. Permissive property use is not adverse posses­sion, as that is not considered hostile to the real title holder.

Acquiescence requires the claimant to show that the parties have accepted or “acquiesced” to a partic­ular boundary line delineating the parties’ respective lots for the statutory period of 15 years. For example, acquiescence would apply if a fence was misplaced a couple of feet onto an adjoining property when it was built, and the parties have treated the fence as the property line for 15 years.

The Waisanen case turned on the interpretation of Section 5821 of the Revised Judicature Act, which provides:

  1. Actions for the recovery of any land where the state is a party are not subject to the periods of limitations, or laches. . . .
  2. 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.

The Court of Appeals, relying on the statute’s plain language and the distinction between subsections 1 and 2, held that the Revised Judicature Act does not bar a property owner’s claim for either adverse pos­session or acquiescence unless the municipal corporation sues to recover possession of the prop­erty. A municipal defendant that files a counterclaim for possession, rather than initiating a complaint, is not protected.  Section 5821(2) only protects those municipal corporations that sue to recover property before the property owner brings a claim alleging ad­verse possession. This situation creates a “race to the courthouse” to protect public property.

While the Revised Judicature Act does not define “municipal corporation,” public school districts are often considered to be municipal corporations and will likely be treated as such. For example, the definition of a “municipality” in the Revised Municipal Finance Act includes a school district, an intermediate school dis­trict, and a community college district. Consequently, it is essential that school officials be proactive in pro­tecting public property from encroachment by squatters and neighboring property owners:

  • School officials may wish to consider having a survey performed for all public land owned by the school district to determine whether there are any encroachments.
  • The grounds/facility manager should periodi­cally inspect the property boundaries to determine whether any encroachments exist.
  • If any encroachments are found, school officials should file a quiet title action to seek recovery of the possession of the disputed property before the neighboring property owner files suit.

Being a “good neighbor” by sending a letter requesting compliance could result in the neighboring property owner filing a lawsuit first, thereby resulting in the school district losing the statutory protection from an adverse possession or acquiescence claim. School officials should consider that risk before sending a letter in lieu of filing a lawsuit.