Adverse possession is a doctrine under which a person in possession of land owned by someone else may acquire valid title to it, so long as certain legal requirements are met.  As was the case in the Court of Appeal’s published case, Denise Houston v. Mint Group, LLC et al, claims of adverse possession sometimes come up where neighboring properties have treated a monument (such as a fence or a retaining wall) as marking a boundary, where that monument does not actually mark the true boundary.  If successful, the party bringing the adverse possession claim may acquire title to the property on their side of the monument.

The parties in Houston are the owners of adjacent properties in Grand Rapids.  A retaining wall and a strip of land with a garden, trees, and shrubs on plaintiff’s side of the retaining wall are both situated on the defendant’s property.  Plaintiff filed a quiet title action claiming that she had acquired title to the strip of land through adverse possession and/or acquiescence.  In relevant part, the plaintiff claimed that the parties had treated the retaining wall as the boundary between their properties and that she had maintained the strip of land for at least 15 years.

In response, the defendant argued that plaintiff could not establish her adverse possession claim because she could not show that her possession of the strip of land was hostile – a necessary element of an adverse possession claim.  The term ‘hostile’ is a term of art and does not imply ill will; rather, hostile use is that which is “inconsistent with the right of the owner, without permission asked or given,” and which use “would entitle the owner to a cause of action against the intruder.” Defendant alleged that plaintiff needed to show that the retaining wall was not erroneously constructed with the belief that it marked the true property line in order to show that her possession was “hostile”.

While the Court of Appeals noted that constructing the retaining wall with erroneous belief that it marked the true property line would fail to satisfy the hostility requirement, the Court rejected defendant’s claim that plaintiff had the burden to prove the facts surrounding the construction of the retaining wall.  In order to establish hostility, the Court made clear that a party need only demonstrate an intent to hold to a visible, preexisting, and recognizable boundary.  Because the plaintiff had provided evidence that she intended to treat the existing retaining wall as the boundary between the properties, it was not necessary for plaintiff to establish the circumstances under which the retaining wall was created, nor was it determinative of her claim whether plaintiff believed or did not believe that the retaining wall marked the true boundary between the properties.

The Court of Appeals further found that plaintiff was also entitled to title to the strip of land under her claim  of acquiescence.