Adverse Possession in Ohio

Written by: Ilirjan Pipa
(Summer Associate at Kohrman, Jackson & Krantz)
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The principle of adverse possession enables someone who actually possesses the land of another for a certain period of time to claim legal title to that land without ever having to pay for it. While “actual possession may be 9/10 of the law”, to get to “10/10”, or legal title by adverse possession, a “Quiet Title” action must be filed wherein the elements of adverse possession must be proven. The elements of this claim in Ohio, as well as most other states, are exclusive possession and open, notorious, continuous, and adverse use of the disputed property for a period of twenty-one years. Grace v. Koch (1998), 81 Ohio St. 3d 577, 578. Failure to prove any of the elements by clear and convincing evidence results in failure to acquire title of the property. Below follows a discussion of each of the elements of adverse possession.

Continuous Use

In order to establish the necessary twenty-one year period, several successive periods of possession by different persons may be “tacked” or added to each other, provided that privity exists between the successive occupants. This means that the successive occupants have to be connected by contract, estate or blood. For example, privity that will permit the tacking of possessions exists between testator and devisee, between ancestor and heir, between landlord and tenant, and between vendor and vendee. Zipf v. Dalgarn (1926), 114 Ohio St. 291, 296.

Hostility and Adversity

Turning to the elements of hostility and adversity, the Ohio Supreme Court has stated that any use of the land inconsistent with the rights of the titleholder is adverse or hostile. Kimball v. Anderson (1932), 125 Ohio St. 241, 244. To make possession adverse, “there must have been an intention on the part of the person in possession to claim title.” Lane v. Kennedy (1861), 13 Ohio St. 42, 47. However, “any mistake by the property owners regarding the true property lines is not material to a demonstration of adverse possession. The doctrine of adverse possession applies to persons who honestly enter and hold land in the belief that it is their own, as well as to persons who knowingly appropriate the land of another for the purpose of acquiring title.” Swinson v. Mengerink (Dec. 3, 1998), Van Wert App. No. 15-98-10, 1998 Ohio App. LEXIS 6012, *7. The Ohio Supreme Court agreed with this interpretation in the case of Evanich v. Bridge (2008), 119 Ohio St. 3d 260, 262, where it stated that “to prove adverse use, intent must still be shown, but only intent to occupy and treat the property as one’s own, not the intent to take the property of another away.”[1]
Exclusive Use

Regarding the element of exclusivity, it is well-established in Ohio that the use of the property does not have to be exclusive of all individuals. Rather, “[i]t must be exclusive of the true owner entering onto the land and asserting his right to possession. It must also be exclusive of third persons entering the land under their own claim of title, or claiming to have permission to be on the premises from the true title holder. If the title holder enters onto the land without asserting, by word or act, any right of ownership or possession, his presence on the land does not amount to an actual possession, and the possession may properly be attributed to the party who is on the land exercising or claiming exclusive control thereof. It is not necessary that all persons be excluded from entering upon and using the premises.” Kaufman v. Giesken Enters. (March 7, 2003), Putnam App. No. 12-02-04, 2003 Ohio 1027, P39.

Open & Notorious

Regarding the elements of “open and notorious” possession, Ohio courts have previously held that: “To be open, the use of the disputed property must be without attempted concealment. *** To be notorious, a use must be known to some who might reasonably be expected to communicate their knowledge to the owner *** [or] so patent that the true owner of the property could not be deceived as to the property’s use.” Klinger v. Premier Properties (Nov. 17, 1997), Logan App. No. 8-97-10, 1997 Ohio App. LEXIS 5286, *5. The adverse claim of ownership must be evidenced by conduct sufficient to put a person of ordinary prudence on notice of the fact that the land in question is held by the claimant as his own. Although mere maintenance of the disputed property is not alone sufficiently open and notorious to establish adverse possession, such activity is relevant evidence of open and notorious use, and when combined with other activities under the proper circumstances it may help to establish an adverse possession.

For example, in Kaufman v. Giesken Enters, where the claimants used the disputed strip of land for recreation, planted and pruned trees, cultivated asparagus, parked cars, ran a go-cart, stored firewood, piled debris, placed burn barrels on the property, and kept the property generally attractive according to neighborhood standards, the court found that the true owners were put on notice that the claimants held the land in question as their own and that any rights the
original owners had were extinguished. 2003 Ohio 1027, P38.

What does all of this mean from a pragmatic perspective?

As shown in the cases cited above, provided that all the conditions are met, any encroachment could result in the transferring of the title of your property to an adverse possessor. For this reason, it is advisable to survey your property and familiarize yourself with its correct boundaries and limits. This way you will know if someone else has wrongfully “set up camp” on your land. If they have, it is important that you do not “sleep on your rights” since you could lose ownership of the property. Initially, the proper course of action would be a written demand that the encroacher immediately leave the premises and refrain from treating the disputed property as his or her own. If this does not work, you might have to bring a lawsuit for trespass in order to assert your rights and prevent your neighbor from getting title to your land through adverse possession.

[1] This point was further buttressed in Huber v. Cardiff (July 10, 2009), Miami App. No. 08-CA-24, 2009 Ohio 3433, where the Second Appellate District citing Evanich, held that regardless of any question of motive or of mistake in adversely possessing the property, when a party erects a fence and treats the land on one side of the fence as his own for the requisite time, there is generally little question that possession is exclusive and use of the land is open, notorious, and adverse to interests of the record owner. Id. at P11-13.

27 comments:

Anonymous said...

What about the opposite case wherein a property owner purposely constructs a fence on his own property - say ten feet INSIDE the boundary - in order to allow access for maintenance. Does this mean that in 21 years all his property on the outside of the fence will belong to his neighbor?

Anonymous said...

No. His neighbor would be required to actively possess and use the ten feet outside the fence claiming it as his own.

Barb said...

What if you move into a property that has been abandoned? I have contacted the owners who think the bank repossed the property; I told them that it never went through but they still don't want the property. They wont sign a Quit Claim Deed and wont respond to registered letters to contact me. Back taxes are over $6,400.00. The property will go up for foreclosure on the taxes soon but can I either pay the taxes and move in or move in and then bid on the foreclosure ? Hoping no one else is intereted in the property. My house has been foreclosed on and we must move out. There is no other options for my family; I have check into every housing issue I can this is my only chance to keep my family off of the street.

Anonymous said...

This may be the completely wrong venue, but lets say that I purchased a house with a partner. That partner wishes to vacate the house and stop paying on the mortgage but retain partial ownership of the house. If she decides to stop paying the mortgage, what options are available to take full possession of the house? Do I have to wait 21 years for adverse possession? Or is there a faster approach?

Anonymous said...

So say the previous owners put up a fence that probably stood for 15 years then I buy the propery and continue to use the land up to the fence for another 8 years. Now the new owner of the adjoining property get a surve done and clames he own several feet on your side of the fence and proseeds to start tKing out bushes and trees. Can I fight back and clam Advers possession even though I have only lived there for 8 but the fence has been up for much longer?

Anonymous said...

We have lived on the same property for 39 years. In the past month have put a new house where the existing house was at. A surveryor came and and said that part of the house is not on our property . There are no previous owners of this property . The county is saying that we have to get a lawyer to get a quiet deed to resolve thus problem. We have maintained this property for the 39 years with the understanding it was ours and have paid taxes on it. Doesn't seem right that we should have to pay out more money to rectify this situation. We wanted to make the property nicer and now we have a new house and can't live in it. There is no records of anyone owning this part of the property back to 1893. Why does this have to be so complicated ?

Robert said...

My father had recently died. Part of what I thought was his land is now being claimed by his neighbor . This land has always been taken care of by my father since 1977 all the way to his death in 2011 . As a child growing up I always believed this was my fathers land . He has actually drilled three wells on this land one of which is the active well to his house . Now since his passing the neighbor is now claiming this property back . Do I have any rights to this land ?

Anonymous said...

We have a large piece of property that is not ours. The majority of this land has been leased to a farmer but the rest of this land has been maintained by all of the surrounding neighbors. The area that we have been mowing for over 30 years is about twice the size of our back yard. The owners want to lease the entire prperty to a private foundation to build a sports facility. What would our changes be if we took the owners to court claiming adverse possession and how costly would it be?

Realtor712 said...

Barb that would not be adverse possession in that situation. You would be better off trying to acquire the property through a sherriffs sale/ foreclosure sale.

Realtor712 said...

Robert as long as you and your father have maintained this land over 21 years, you have a good case to take adverse possession. Keep maintaining the land, post a no trespassing sign and get a real estate attorney.

Realtor712 said...

Anon of 8/30
Yes I would get a real estate attorney, but only for the portion of estate that you have and continue to maintain. No one can estimate atty expenses in these cases, of course, but a good way to judge it is the value of the property gained versus court and atty fees. In some cases it will not benefit to go to court over small tracts of property, because of legal expenses, but it may be the "right" thing to do.

Everyone-
The important thing to remember is adverse possession protects those who have maintained and enjoyed the proprty for 21 years, it's not meant to willfully seize property in an opportunistic manner just because you want somewhere to live.

Realtor712 said...

Anon of June 5-

Get a real estate attorney, I think you will have a very good chance of having this rectified quickly. Continue to live in the house though, and post a no trespass sign. It is a civil matter and law enforcement cannot stop you from enjoyment of your home. You must openly enjoy, maintain all of the property in question throughout the process!

Realtor712 said...

Anon of Aug29-

I would not advise depending on adverse possession to take care of these circumstances. It really wouldn't be appropriate. I would communicate via an atty to your partner that you wish to buy out their half, a bank will hold you responsible for the entire mortgage should they fail to pay. A quick claim deed is best in these situations, but if they remarry their spouse gains dower rights to the property, so try to resolve this before they remarry r you will have to pay their spouse to sign off eventually ( in most cases).

Mark Evans said...

Can you claim adverse possession on government land? Say I go deep into a forest and live there for 21 years undetected. I clearly mark my boundary and care for the land. Can I then claim it as my own?

Stephen D. Richman, Esq. said...

In most jurisdictions, governmental property is immune from claims of adverse possession. The basis for the “immunity” is often statutory, but the law in some jurisdictions depends on case law. In jurisdictions where adverse possession is not precluded entirely, the type of land/use is important. In Ohio, a 2007 case, Houck v. Bd. of Park Commrs. of the Huron Cty. Park Dist., Slip Opinion No. 2007-Ohio-5 is controlling.
The Supreme Court of Ohio in “Houck” reasoned: “allowing adverse possession to be asserted against public property would deprive citizens of the public uses for which that property was intended”. The Court explained that this rationale was especially applicable to park lands set aside for the enjoyment and recreational use of all members of the public. Justice Stratton, writing for the majority also noted that park districts typically control remote parcels of land covering hundreds of undeveloped acres that are extremely difficult to monitor for intrusions. Justice Stratton concluded: “For all the above reasons, permitting adverse possession of park-district property [in Ohio] is against public policy and the legal principles underlying adverse possession”.
Thanks for your comment.

Mark Evans said...

Thanks for the quick reply and detailed explanation! Do you know anything about "homesteading"? I don't plan on actually doing any of this, I just find it fascinating (although complex to understand).

Thanks!

Anonymous said...

Will adverse possesion stop foreclosure?

Anonymous said...

Can you stop paying your mortgage after 21 years and claim adverse possession when the bank tries to foreclose on your property?

Anonymous said...

The Homestead Act was repealed in the 70s.

There are instances where government land IS available by adverse possession, but it's incredibly rare.

http://whatisadversepossession.com/

Anonymous said...

There is a piece of property adjoining ours .It's @7 acres . The owner showed up once in 15 years , mowed a little path with a bush hog, left the bush hog and has never returned. We have been mowing a large path to walk and ride horses on it ever since.We also cut out box elder and a couple of other invasive species to protect our own property. I have run off people who attempted to set up a place to do drugs (huffing etc.) Once a tornado dropped a considerable amount of debris (siding ,insulation,personal papers etc.) on the property. It took me about 2 months to clean that up.
Is this good case for adverse possession?

Anonymous said...

I have a 5' easement for the electrical company so when I put up my fence I had to leave 5' behind. I go back and mow, maintain, and have stored firewood there in the past. While I was putting up the fence a new neighbor bought the house behind mine. We had discussed the easement because he made a comment about butting a fence up to mine. After a year he started walking his dog into my 5' area to poop. I politely asked him to not do this as I do not want to walk in his dogs poop when mowing. Now he started to mow and still has his dog poop in my yard. I do not want him mowing as he shaves it down to dirt and we mow plenty so there is no overgrowth or need for him to mow. There is more poop and my only option is to call the cops. However, will this eventually become his property if this continues? Any ideas on how to make it stop? I am the only one with expense of pepper powder, vinegar, put up another type of fence, plant something, etc.

Anonymous said...

We signed a caretaker's agreement with a man claiming to own the house that we moved into - the agreement makes us exclusively responsible for everything relating to the property's maintenance and control, including upkeep of the land, repairing the property, and paying the taxes and bills for the property. After 5 years, this man is supposed to enter into a land-contract with us and officially sell the house to us. We have not heard from this man for months now and all contact information we had to him has either changed or was false. Can we still stay here under the laws of adverse possession?

Anonymous said...

We have a brick wall in our front yard with the name of the neighborhood imbedded in the wall. The homeowners association asked us if they could re-landscape the area because the bushes next to the wall had grown too large in their opinion. They paid for most of the landscaping and we paid for some of it. Now they have started treating the area as their own - placing signs there, hanging wreaths on the wall, etc. Should I be concerned about adverse possession?

Anonymous said...

If the use by the adjoining landowner doesn't adversely affect you (i.e. you don't use that space he's using), can't you just give him permission to use that space until you advise him not to and defeat adverse possession?

Anonymous said...

have a case going to trial on Monday arguing Acquiescence as Plaintiff. The other side will bring up ORC 5301.21. Any ideas on how to get around it?

Anonymous said...

I am seeking some advise quickly if possible: here's the situation- there is an abandoned home- i have done tons of research, the owner is deceased, only in his name, ex wife and child want nothing to do with it, has some back taxes- city and county state him as the owner, was in forclosure but no bid no sale and was satisfied- the bank who had an interest in this has no record of this house and all roads show him as the owner. how to i file to take over this house and pay the taxes? i have also checked probate--nothing there.

thanks

Tee Brown said...

My situation. My now former neighbors left their house and moved to the West Coast. I have been maintaining the property since 2011. This includes, trimming the hedges, mowing the lawn and growing a vegetable garden in the backyard. They mentioned before they left they were upside down on their mortgage and weren't coming back. If I starting paying the taxes on the house. Which deed can I try to pursue? Is it a Quit Claim Deed, and where do I file this? Thanks