Background
Max W. Firman III and Dawn M. Kasner purchased property at a 2015 tax sale. They contended that a mistake originating in a recorded 1965 tax deed changed a boundary measurement from 400 feet to 450 feet, leaving a disputed 50-foot-wide strip—containing a structure—within the legal description of neighboring land Antonio Santos purchased in 2021. Surveys commissioned by Santos placed the strip within his property.
The plaintiffs alleged that they and their predecessors had used and maintained the disputed area and structure and had paid taxes associated with the property. They relied in part on a 1982 deed transferring interests in real estate possessed by the grantor for more than 15 years “in this vicinity,” a 2013 affidavit referring generally to adverse possession, and tax records. Santos disputed their account and presented evidence that his immediate predecessor had placed a “NOT IN TAX SALE” sign on the structure around the time of the plaintiffs’ purchase.
The circuit court granted Santos summary disposition and dismissed the plaintiffs’ amended complaint, concluding that the original title challenge was time-barred and that the evidence did not create a genuine factual dispute supporting adverse possession or acquiescence. Because Santos’s counterclaims remained unresolved, the Court of Appeals treated the improperly filed appeal of right as an application for leave and granted leave.
The Court’s Holding
The Court of Appeals affirmed. The plaintiffs did not dispute that their predecessors had been disseised of the disputed area in 1980, after expiration of the 15-year limitations period tied to the 1965 deed. Instead, they argued that they and their predecessors later reacquired the strip through adverse possession or acquiescence. The court held that the record did not create a genuine issue of material fact under either theory.
The 1982 deed repeated the 1965 legal description and did not identify what additional property had allegedly been possessed. The 2013 affidavit likewise referred generally to interests outside the recorded chain of title without identifying the disputed strip. Neither document gave constructive notice of adverse possession, and the tax records showed only assessments on land described by the 1965 deed. The plaintiffs also failed to present specific evidence establishing who built or used the structure, how the strip was possessed, or whether any possession was actual, continuous, open, notorious, exclusive, hostile, and uninterrupted for 15 years.
The acquiescence claim failed because there was no evidence that successive neighboring owners treated a particular marker or boundary as the property line for the statutory period. The record lacked evidence of Santos’s predecessors’ agreement or acquiescence, and the “NOT IN TAX SALE” sign indicated that his immediate predecessor disputed the plaintiffs’ claimed boundary. The court remanded for proceedings on Santos’s outstanding counterclaims and did not retain jurisdiction.
Key Takeaways
- General references in deeds or affidavits to property possessed “in the vicinity” or to unspecified interests acquired through adverse possession do not establish a claim to a particular disputed parcel.
- An adverse-possession claimant opposing summary disposition must produce concrete evidence of possession satisfying every required element for the full 15-year statutory period.
- Acquiescence requires evidence that adjoining owners treated a particular boundary or marker as the property line for 15 years; evidence concerning only one side’s conduct is insufficient.
Why It Matters
The decision illustrates the evidentiary detail required to pursue adverse-possession and acquiescence theories after a record-title claim has expired. Ambiguous recorded language, tax assessments using the existing legal description, and nonspecific allegations of historical use will not create a triable issue concerning ownership of a defined strip of land.
The opinion also underscores a procedural point: an order dismissing a complaint is not necessarily final or appealable as of right when counterclaims remain pending. Here, the appellate court exercised its discretion to treat the attempted appeal of right as an application for leave.