Are There Any Holes in My Adverse Possession Case - Before I Take It to Court

[budwad]

RXBrown,

I'm not an attorney but Taxing Matters is and he knows very well what strict construction of a statute is. Your SOL is 15 years and perhaps add one more year if you were the property owner when the property was forfeited (that would be in the second year of arrears).

I think I will have pasta for dinner. Thanks and good luck.

[latigo]

Taxing Matters - The statute states clearly that if the defendant got his title from the government that the SOL period is 10 years. If he did not get it from the government, the SOL period is 15 years. B didn't get the title from the state. His title is from A. So he should have the benefit of the 15 year rule.

What you are proposing here is that the various periods of limitations to recover possession of real property (as set down in MCL 600.5801) aren't necessarily fixed, but can fluctuate from time to time depending on the means whereby successor owners obtained title. I deem that unsound.

If you believe it to be true that B has the benefit of the 15 year rule simply because he got tittle from A and not the state, why wouldn't it follow that the 5 year rule should apply if his title were derived from the executor of A's estate, or a testamentary trustee or traced to any other source mentioned in subparagraph (1) of the statute?

[Taxing Matters]

If you believe it to be true that B has the benefit of the 15 year rule simply because he got tittle from A and not the state, why wouldn't it follow that the 5 year rule should apply if his title were derived from the executor of A's estate, or a testamentary trustee or traced to any other source mentioned in subparagraph (1) of the statute?

If that were the case, then I think the 5 year period may well apply. At least that is how the statute is drafted. The alternative you suggest is equally unsound IMO, that the 10 year statute would always apply regardless of what successors there were after a tax deed sale, a result I think is not what the state intended. Similarly, I think it is not intended for the 5 year period to apply regardless of how many successors there may have been after title passed from the executor of an estate.

[budwad]

I finally found a Michigan case that I think is a pretty good match to OP's situation. The plaintiff is representing himself as propria persona and is challenging the validly of a tax deed and conveyance to a new owner. I think OP should take notice.

https://scholar.google.com/scholar_c...=2&as_sdt=4,23

I think it is a perfect example as to why people need to hire attorneys.

[RXBrown]

PART I. WHAT IS TITLE?

I’M SHOCKED, Taxing Matters!! You ‘almost’ pulled a budwad (sorry about that bud; I appreciate you)! And I know ‘you’ are above that sort of thing. You skipped passed one word – the most important word – and bolded the wrong word:

And just for the record, it's worthy of noting that in a matter such as this what is at issue is the purchaser's "title" in the property, not the purchaser's "deed". There is a difference.

(2) Defendant claiming title under tax deed. When the defendant claims title under some deed made by an officer of this state…

Mr. Matters (or may I call you Taxing?), you know good and well that no one goes before a court and claims deed… Before a court of law, and just as the statute says, what is being claimed is title (ownership, or degree thereof). A deed might be 'one' article in determining proof of actual title, and the court may also use one or many other evidentiary elements to determine what 'acutally happened in the real world to determine the extent of title (ownership) of the subject property'. And 'what actually happened in real life' is kinda a big thing with the courts. I'd also be remiss if I didn't point out a very key element in the statute that you quoted: The statute reads "When the defendant claims title under some deed...". 'Title (ownership, type of ownership or degree thereof) is 'not' presumed or automatically accepted as true as "claimed" by a defendant. The court will seek to determine what is true title.

I believe you know the following, but I’ll include it here for readers who may not be so familiar:

Definition:
title – noun. Means “ownership”; the degree of “ownership” Synonym of title: “ownership, or degree thereof”.

Definition:
deed – noun. (1) “a piece of paper”, upon which the actual title (ownership, or degree thereof) can be listed.
(2) A piece of paper which has no value itself, other than it can be used as proof of title (ownership).

‘Examining title’ – especially in a legal context – does NOT mean scanning over the paper deed to see if the paper grain is intact. Rather, it means examining all of the circumstances which an individual alleges have occurred to give him actual TITLE to the property. A ‘deed’ is ONE article that can be used to determine true title (or type or degree of ownership) - however since a deed is merely a piece of paper which anyone can type up, a court of law either through challenge by a plaintiff or on the court’s own initiative will examine the circumstances to determine what IS the actual title (ownership, or degree thereof) of the property.

The question “What title do you hold in this property” means what is your actual ownership of this property.
Example 1. When a man goes to court claiming TITLE to a property, a judge will not be so simple-minded to say “oh, well, he has a piece of paper which says ‘Quit Claim Deed’ so, case closed.” The court will, logically, examine the set of circumstances – e.g. the court will examine the ACTUAL history (actual title) only to find out that a divorce decree existed and the man did NOT have full title to the property, despite his claiming title under some 'deed'.

Example 2. When a man goes to court claiming TITLE to a property under some ‘deed’, the court will examine the set of circumstances – e.g. the court will examine the ACTUAL title (actual history) only to find out that per a probated estate the man’s ACTUAL TITLE to the property was a 1/3 interest in the property despite his claim under his “deed”.

Example 3. When you buy a car, you don’t get "a title" for the car; there is no such thing as "a title" (in this context). What you get is a “certificate” of title; a piece of paper (a ‘certificate') indicating the extent of your “ownership” (title) (or degree thereof, such as in the case of a lien holder also listed on the certificate) of that vehicle.


PART II. TITLE IN ‘THIS’ PROPERTY

At the time that "A" sold the property, it had an encumbrance: There was an adverse possessor who had control of the house, and whose clock had already begun to toll and had 8 or so years remaining before a legal owner had to either secure possession, grant permission, or abandon his interest in the property. From a legal standpoint, buying a property but not being able to actually occupy, visit, or live in that property because someone else has control of it would be considered kind of a big deal… Or more legalistically said, it would be considered a significant encumbrance; one so significant that it has the potential to even cause that owner to lose the property. ‘That’ is the actual TITLE of this property.

As of the date of the sale of the property the status/ownership/title of the property was as follows:

A) A tax-sale acquired property
B) No liens
C) Encumbered by an adverse possessor with 8 years left to toll.

@Taxing Matters (or anyone else), do you believe it is correct that when “A” merely typed up a deed and put “Quit Claim Deed” at the top of the page to transfer to "B" whatever interest he actually had in the property, that that erased the situation of any liens and/or the adverse possessor encumbrance ? That that mere transfer somehow now has changed the fact that the property was encumbered at the time of sale by an adverse possessor with 8 years left to toll?

Because isn’t it true to say that to adopt that position, that would go against decades and decades of case law and precedent which follow the legal principle that a mere transferring of deed or title does ‘not’ erase liabilities against said title? Specifically, isn't it true that case law and precedent has been well established that "a mere transfer does ‘not’ restart the clock on the statute of limitations as it pertains to an adverse possessor"'? And if in my case the mere signing of a deed and putting “Quit Claim Deed” at the top of the page makes the existing encumbrance of the adverse possessor go away, that would be exactly what is being allowed to occur – erasing the encumbrance without equity.

I would argue that such a mechanism to make liabilities or encumbrances magically disappear - as if that physical person living in the house no longer exists or is there - is unrealistic, unethical, inequitable, fraught with the potential for abuse, and should not be recognized by any court. And as you already know, the courts have also adopted that position through the concept of 'tacking of time periods'. And in Michigan, it is overwhelmingly clear that there have been abuses of the system, and is abundantly clear that the intent of legislature was not to allow exactly these types of loopholes and abuses.

CONCLUSION:

A purchaser of a property should acquire the same property rights, as well as the same property liabilities that the seller actually has to sell. Nothing less; nothing more.

[budwad]

[U][B]

At the time that "A" sold the property, it had an encumbrance: There was an adverse possessor who had control of the house, and whose clock had already begun to toll and had 8 or so years remaining before a legal owner had to either secure possession, grant permission, or abandon his interest in the property. From a legal standpoint, buying a property but not being able to actually occupy, visit, or live in that property because someone else has control of it would be considered kind of a big deal… Or more legalistically said, it would be considered a significant encumbrance; one so significant that it has the potential to even cause that owner to lose the property. ‘That’ is the actual TITLE of this property.

There is nothing in the law, statutes or case law of any state that says that a potential claimant of adverse possession has any lien on property. And when the SOL runs, they then have a claim but not before. This is something you made up because it is not founded in law.

[Taxing Matters]

At the time that "A" sold the property, it had an encumbrance: There was an adverse possessor who had control of the house, and whose clock had already begun to toll and had 8 or so years remaining before a legal owner had to either secure possession, grant permission, or abandon his interest in the property. From a legal standpoint, buying a property but not being able to actually occupy, visit, or live in that property because someone else has control of it would be considered kind of a big deal… Or more legalistically said, it would be considered a significant encumbrance; one so significant that it has the potential to even cause that owner to lose the property. ‘That’ is the actual TITLE of this property.

As of the date of the sale of the property the status/ownership/title of the property was as follows:

A) A tax-sale acquired property
B) No liens
C) Encumbered by an adverse possessor with 8 years left to toll.

At the time of the quit claim deed from A to B, what existed were no liens and a trespasser living in the home. The very day after B got that quit claim deed he or she could have moved to eject you from the home. You had no lien interest in it at that time — you could not have gone into court at that time and foreclosed a lien interest in the property and take the property from B because no such lien existed. Your adverse possession interest only arises AFTER you meet the statutory time, e.g. the 10 or 15 years. You hadn't even yet met the 10 years you claim at that time, so you had no interest in the property when that quit claim deed was granted from A to B. You were simply a trespasser; a squatter with no legal right to ownership or possession of the property. Your interest to the property does not arise until ALL the elements of the adverse possession (AP) claim are met, including time. So after the relevant SOL, at that point your interest thus arises. That had not yet happened at the time of the quit claim deed from A to B. Prior to meeting all the requirements, your AP claim was inchoate; not yet completed, giving you no interest in the property.

Once your AP interest arises, is it a lien interest? I've not seen any cases in any state that have held that to be the case. Rather it gives the adverse possessor a claim to an ownership interest, not merely that of a lienholder. Indeed, I seem to recall a case in which a buyer at a court sale of a property that extinguished all lien interests on the property tried to defeat an adverse possession claim under a theory that the inchoate AP interest was indeed a lien interest and thus the sale extinguished the lien. If the buyer had been correct then it would have reset the clock for AP on the property. But the court held it was not a lien interest and thus the AP time clock was not reset as a result.

A purchaser of a property should acquire the same property rights, as well as the same property liabilities that the seller actually has to sell. Nothing less; nothing more.

Quite correct. But you are misconstruing what the state of the title was at the time of the quit claim deed. When A granted the deed to B, A was (at least so far as we know in this thread) the title holder of the property as a result of the tax deed A got from the county. At that time, the property has a trespasser in it that had been there for 2 years. No AP claim yet existed because all the requirements for it had not been met. What that means for B is that his clock on getting you out before that AP claim matures has now already gone two years, shortening the time he has to get you out. The fact that you had been living there 2 years certainly does not deprive either A (before the quit claim deed) or B (after the quit claim deed) of their claim to title in the property. That only occurs AFTER you have met the applicable SOL period.

Now, as to the SOL statute, it centers on whether the "defendant claims title under some deed made by an officer of this state or of the United States...." B's claim to title in the property is by the quit claim deed from A. B has no other claim to title but through that deed. Without that deed, he has nothing. The problem for you is that his claim to title is from a deed that was not from an officer of the state or the United States as a result of a tax sale. So as I see it, you don't get the 10 year SOL period. I can understand you don't like the way that turns out, but if you apply statute literally as written, the result is your period is 15 years, not 10.

You have a big interest at stake here and I believe you have a bias here that is affecting your objectivity. You really want the period to be 10 years so you can make the filing to quiet title and get record title to the property now. But I say again, if you are wrong, if you screw it up and end up losing your case, you run the risk that the owner will eject you and lose your claim altogether. So I again urge you to consult a real estate attorney in your state to assist you in this. If you really want to keep this property, the fees for that legal assistance are a worthwhile investment for you.

[RXBrown]

I finally found a Michigan case that I think is a pretty good match to OP's situation. The plaintiff is representing himself as propria persona and is challenging the validly of a tax deed and conveyance to a new owner. I think OP should take notice.

https://scholar.google.com/scholar_c...=2&as_sdt=4,23

I think it is a perfect example as to why people need to hire attorneys.

INCORRECT.

Read, @budwad, read before you post. I am familiar with the case that you referenced. Thanks for the input, however I regret to inform you that it has essentially nothing in common with my case. Just because an in pro per plaintiff improperly cited and/or attempted to use a certain mechanism (a certain statute) in the presentation of his case, that does not make said mechanism or citation valid or relevant. Furthermore, the analysis by the appellate court in the very citation that you referenced literally said same:

Court of Appeals of Michigan: "Plaintiff cited MCL 600.5801 in his response to defendants' motion for summary disposition, but provided no analysis. It is therefore not properly preserved. Regardless, the argument lacks merit."
[i.e. 600.5801 does not apply; it is not a statute of limitations case; it is not an adverse possession case. It is, in essence, a disgruntled owner case.]

I think it is a perfect example as to why people who participate on law forums - particularly if they do not have actual professional legal experience - need to be conservative in the opinions that they offer.

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Michigan has some laws on the books relating to squatting, trespassing, eviction, etc. with which the OP should become more familiar, specifically PA 223 and PA 224 of the 2014 session.

The OP seems to feel that the owner would need to go to court to evict and re-take possession of the property. That is true in most states, and in Michigan prior to 2014. The situation is now changed.

INCORRECT.

Thanks for the input, LandSurveyor. However, the references that you have supplied are irrelevant to my situation. Self-help repossession, in the realm of Michigan law, was intended, drafted, and has been implemented as it pertains to 'trespassers' - a big problem in several of Michigan's larger cities such as Detroit, Flint, and Ypsilanti. The law was 'not' intended, drafted, nor has been implemented as it pertains to renters and leaseholders whose lease has expired, and other forms of holdover tenancies - such as is the case when a home is foreclosed but the now-former homeowner still remains in the property.

This is evidenced by the actual cases in the courts wherein it is still necessary to go through the courts to resolve civil property disputes.

I would normally assume that you have taken the time to at the least check the definition of trespasser before you went to any length to post your comment. However, it appears that this may not be the case for some of the commenters here.

Definition:
From wikipedia:
In the law of tort, property, and criminal law a trespasser is a person who commits the act of trespassing on a property, that is, without the permission of the owner.

MCL 750.553
Sec. 553. (1) Except as provided in subsection (2), an individual who occupies a building that is a single-family dwelling or 1 or both units in a building that is a 2-family dwelling and has not, at any time during that period of occupancy, occupied the property with the owner’s consent...

Obviously, a person who owns a property has at some point during that 'period of occupancy' kinda given himself permission to be on the property. If that owner is then foreclosed after-the-fact, he is then - by definition of the court - a holdover tenant, and not someone who illegally obtained access and possession of said property - i.e. not a trespasser. Renters, lessees, and holdover tenancies are civil dispute matters, not criminal police matters. Which would explain why the police here are still referring ‘civil matters’ to the court for the court to disentangle and adjudicate.

Lastly, I'll just presume that you did not have time to think it through when you posted that reference as to whether it was relevant or not. I mean, no one in their rational right mind would believe that it should be a Michigan Penal Code CRIMINAL offense where you can be THROWN IN JAIL for 6 months and fined up to $5,000 if your lease expires and you are on the property even ONE DAY afterward;
* Or if you sell your home and you are still there even ONE DAY after the date that you were supposed to move out;
* Or your house was foreclosed and you are still on the premises even ONE DAY after the auction buyer receives his deed.

Clearly, to believe that that law applies to anyone other than an illegal trespasser as the law states would be utterly ridiculous. If you’d like further clarification, I can refer you to Kurt Heise’s office. Though I have reason to believe that the idea was suggested to him by someone else, nonetheless it was he who formally sponsored that bill [HB5070]. [Kurt is no longer a House rep, but he likely is still willing to answer a question or two when time and circumstance will allow.]

But, thanks again anyway.


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There is nothing in the law, statutes or case law of any state that says that a potential claimant of adverse possession has any lien on property. And when the SOL runs, they then have a claim but not before. This is something you made up because it is not founded in law.

INCORRECT.

Read, @budwad, carefully and dutifully read before you post. I did 'not' say anything about an AP having any sort of lien.

1) I specifically put in outline form that the status of the property at the time that 'A' sold to 'B' was:
B) No liens.

2) I specifically stated in grammatical form that the status of the property at the time that 'A' sold to 'B' was that "it had an encumbrance"; I did not say it had a "lien", or that it would at any point in the future become any form of any lien.

3) I then further went on to include the subordinate sentence to define that encumbrance:
"At the time that "A" sold the property, it had an encumbrance: There was an adverse possessor who had control of the house...."

Again it appears necessary to post a definition (though, I thought that these were relatively basic concepts):
From lawinsider (dot com):

Encumbrance means any lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance, claim, infringement, interference, option, right of first refusal, preemptive right, community property interest or restriction of any nature (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).

A car is an automobile; an automobile is not necessarily a car.
A lien is a form of encumbrance; an encumbrance is not only in the form of a lien.

[budwad]

INCORRECT.[/B]

Read, @budwad, carefully and dutifully read before you post. I did 'not' say anything about an AP having any sort of lien.

1) I specifically put in outline form that the status of the property at the time that 'A' sold to 'B' was:
B) No liens.

2) I specifically stated in grammatical form that the status of the property at the time that 'A' sold to 'B' was that "it had an encumbrance"; I did not say it had a "lien", or that it would at any point in the future become any form of any lien.

3) I then further went on to include the subordinate sentence to define that encumbrance:
"At the time that "A" sold the property, it had an encumbrance: There was an adverse possessor who had control of the house...."

Again it appears necessary to post a definition (though, I thought that these were relatively basic concepts):
From lawinsider (dot com):

Encumbrance means any lien, pledge, hypothecation, charge, mortgage, security interest, encumbrance, claim, infringement, interference, option, right of first refusal, preemptive right, community property interest or restriction of any nature (including any restriction on the voting of any security, any restriction on the transfer of any security or other asset, any restriction on the receipt of any income derived from any asset, any restriction on the use of any asset and any restriction on the possession, exercise or transfer of any other attribute of ownership of any asset).

A car is an automobile; an automobile is not necessarily a car.
A lien is a form of encumbrance; an encumbrance is not only in the form of a lien.

Thanks for pointing out the obvious. I should have used the word encumbrance (I'm sure you knew what I meant). But it doesn't change anything. Taxing Matters explained it; I fully agree with his post so there is no need to restate the argument.

But you are not and will not be an AP claimant until 2026. That is the law (statute or otherwise) no matter how you want to twist the law to fit your narrative. All you are is a trespasser with no property interest in the property.

The evolution of the doctrine of AP goes back to about 2000 B.C. in the Code of Hammurabi. I doubt you will be able to overcome what the law is today.

If your position, that a person is an adverse possessor before the SOL ran and produced an encumbrance on the property, then on day one of an unlawful possession of property would vest interest in someone's property. That is delusional and ridiculous.

[LandSurveyor]

As Budwad clearly points out:

All you are is a trespasser with no property interest in the property.

You are precisely the target of the 2014 "squatters" acts.

So you return some day to find the situation as I described in an earlier post. What will you do?

The owner or his agents will certainly have a copy of the deed. Maybe even a stack of property tax receipts. What will you have? A theory.

"But officer, but, but, but....."

Apparently none of the comments posted here in reply to your query have poked a "hole", so perhaps it is time for you to take your case to the next venue: your county court. Please keep us posted on that situation. Some here are very interested in ground-breaking property law cases.