Written by: Ilirjan Pipa
(Summer Associate at Kohrman, Jackson & Krantz)
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.
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.”
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.
 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.