Adverse possession is a legal concept that allows someone who is not the legal owner of a piece of land to eventually gain ownership rights to that land through continuous, open, and exclusive possession of it for a specific period of time.
For actual landowners, the idea that someone else could eventually gain ownership of their land simply by occupying it can be unsettling and even unfair.
This article will discuss the element necessary to gain title to someone else’s land in Ohio by adverse possession and, more importantly, how to prevent this from happening to your land.
The Elements of Adverse Possession in Ohio
A party who seeks to establish title to real property by adverse possession in Ohio must prove that he possessed the land and that his possession was (1) Adverse, (2) Open, (3) Notorious, (4) Exclusive, and (5) Continuous for twenty-one years.” Pennsylvania Rd. Co. v. Donovan (1924), 111 Ohio St. 341, 349-350, 145 N.E. 479, 482 and Ohio Rev. Code § 2305.04.
Failure to prove even one of these elements will defeat an adverse possession claim.
Here is what the courts in Ohio have said about each one of the elements necessary to establish adverse possession:
1. Adverse
The possessor’s occupation of the property must be “adverse.” “Adverse” means “visible and adverse possession with an intent to possess.” Humphries 262*262 v. Huffman (1878), 33 Ohio St. 395, 402.
This means the possessor does not have the owner’s permission to be on the land. “Adverse” does not mean anger or hatred. The state of mind of the adverse possessor is irrelevant.
If the possessor initially enters the land with the permission of the actual owner, the possession does not become adverse until the possessor makes clear to the actual owner that she is claiming “hostilely.”
This can be done by explicit notification, refusing to permit the actual owner to come onto the land, or other acts inconsistent with the original permission.
2. Open
For adverse possession to be considered “open,” the property must be used “without attempted concealment.” (See Hindall v. Martinez, 69 Ohio App.3d 580, 584, 591 N.E.2d 308 (3rd Dist.1990)).
3. Notorious
For adverse possession to be considered “notorious,” the use must be “known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision.”
“In other words, the use of the property must be so patent that the true owner of the property could not be deceived as to the property’s use.” (See Hindall at 583, 591 N.E.2d 308).
Example: A Cable Company runs a cable under Landowner’s land, and there is no indication of the cable’s existence from the land’s surface. The Cable Company cannot gain title by adverse possession because there is nothing to put the Landowner on notice of the trespass.
4. Exclusive Possession
To establish exclusive possession, “the use of the property does not have to be exclusive of all individuals.” Instead, it must be exclusive of
- (1) the true owner entering the land and asserting his right to possession and
- (2) third persons entering the land under their own claim of title or claiming to have permission to be on the premises from the actual titleholder. (See Turner v. Robinson, 2017 Ohio 7228 – Ohio: Court of Appeals, 4th Appellate Dist. 2017).
“Exclusive” means that the possessor is not sharing the land with the actual owner or the public. This requirement allows two or more people to work together to obtain title by adverse possession. If they do so, they will get the title as tenants in common.
Example: Ann and Bob are next-door neighbors. They planted a Christmas tree farm on 20 vacant acres behind their homes. Ann and Bob share expenses and profits from the Christmas tree farm. If all other elements for adverse possession are present, Ann and Bobb will own the lot as tenants in common at the end of the twenty-one-year period.
5. Continuous for Twenty-One Years
The adverse claimant’s possession must be continuous throughout the Twenty-one years. Ohio Rev. Code § 2305.04. Continuous possession requires only the degree of occupancy and use the average owner would make of the property.
For adverse possession to be “continuous,” there must not be a substantial interruption, “with daily or weekly use generally not being required as long as the use is continuous enough to indicate prolonged and substantial use.” (See Greene v. Partridge, 78 NE 3d 197 – Ohio: Court of Appeals, 4th Appellate Dist. 2016).
There also does not need to be twenty-one years of continuous possession by the same person. Ordinarily, an adverse possessor can take advantage of the periods of adverse possession by his predecessor.
Separate periods of adverse possession may be “tacked” together to make up the entire ten-year period with the result that the final adverse possessor gets title by adverse possession.
Does a Person Have to Pay Taxes to Acquire Adverse Possession?
Ohio does not require the adverse possessor to pay taxes on the property. However, payment of property taxes is good evidence of adverse possession.
Government Land That Cannot Be Adversely Possessed in Ohio
A person cannot gain title to any government-owned land by adverse possession in Ohio.
Strategies to Safeguard Your Property Against Adverse Possession
Avoiding adverse possession of your property involves taking proactive measures to protect your ownership rights and prevent others from acquiring legal ownership through continuous and open use.
Here are some strategies to consider:
- Regular Property Inspections: Regularly inspect your property to ensure no one uses it without your permission. This will help you identify any potential adverse possession claims early on.
- Clear Boundaries: Mark the boundaries of your property with fences, walls, or other visible markers. This can help prevent encroachments and clarify where your property lines lie.
- Communication: If you become aware of someone using your property, communicate with them in writing to assert your ownership rights and ask them to stop. This establishes a record of your efforts to prevent adverse possession.
- Property Tax Payments: Continuously pay property taxes on time. Failure to pay property taxes can weaken your claim to the property and make it easier for someone else to claim adverse possession.
- No Permission: Do not grant permission for others to use your property in a way that might be construed as allowing them to gain ownership. Any permissive use can weaken your defense against an adverse possession claim.
- Document Everything: Keep records of property surveys, deeds, property tax payments, and any communication with individuals using your property without permission. These records can be crucial evidence if a dispute arises.
- Lease Agreements: If you allow someone to use your property temporarily, create a written lease agreement that explicitly states their lack of ownership rights and specifies the duration of use.
- Regular Use: Continue using your property regularly. Regular, consistent use helps demonstrate your active ownership and can undermine any adverse possession claims.
- Legal Action: If you become aware of a potential adverse possession claim, consult a real estate attorney to discuss your options. Taking legal action early on can help protect your ownership rights.
- Post Warning Signs: If applicable, post signs indicating your property ownership. While not foolproof, this can discourage individuals from attempting adverse possession.
- Negotiation: If you discover someone is using your property without permission, consider negotiating an agreement that reaffirms your ownership while allowing them to use the property under certain conditions.
- Land Use Agreements: If you know someone using your property, you can create a land use agreement outlining their use while reaffirming your ownership. This agreement can help prevent adverse possession claims.
Conclusion
I strongly recommend seeking legal advice from an experienced real estate attorney in Ohio if you have any concerns related to adverse possession. An attorney’s expertise will provide clarity on local laws, the feasibility of your claim, and the potential risks involved.