ADVERSE POSSESSION EXPLAINED

D.B. Kosie and Associates, LLC would like to give special thanks to Gary R. Kent, PS for allowing the use of this information.

Ohio common law on adverse possession is well-documented and well-stated in the Ohio Court of Appeal’s 2024 decision in NC ENTS., LLC v. Norfolk & W. Ry. Co., 2024 Ohio 1454 – Ohio: Court of Appeals, 9th Appellate Dist. 2024, in which the court helpfully provided a detailed explanation of each of the elements.

“To acquire title to property by adverse possession, the party claiming title “must prove, by clear and convincing evidence, exclusive possession and open, notorious, continuous, and adverse use for a period of twenty-one years.”

The failure of proof as to any of the elements results in the failure to acquire title by adverse possession. Clear and convincing evidence is that proof which establishes in the minds of the trier of fact a firm conviction as to the allegations sought to be proved.

Exclusive Possession means that the use of the property need only be exclusive of the title owner’s or third person’s entry upon the land coupled with an assertion of his right to possession or claim of title to the property.” Hence, “the use need not be exclusive of all persons, but rather, exclusive only of those who assert either by word or act any right of ownership or possession of the land.

Open Use means that there was no attempt to conceal the use of the property. Open use is distinguishable from notorious and adverse use in that the latter uses “require more than merely conducting activities on the disputed property where others can observe.”

To be Notorious, a 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 over his premises. * * * 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.”

To satisfy the “adverse use” element, the claimant “must have intended to claim title, so manifested by his declarations or his acts, that a failure of the owner to prosecute within the time limited, raises a presumption of an extinguishment or a surrender of his claim.” (Internal quotations omitted.) This Court has stated that “[a]dverse or hostile use is any use inconsistent with the rights of the title owner.”

The Ohio Supreme Court has held that “[i]n a claim for adverse possession, the intent to possess another’s property is objective rather than subjective,” so that the party in possession need not have intended to deprive the owner of the property at issue. Instead, the claimant need only have “possessed [the] property and treated it as the claimant’s own” for the statutory period to satisfy the element of adverse use.

R.C. 2305.04 provides that “[a]n action to recover the title to or possession of real property shall be brought within twenty-one years after the cause of action accrued[.]” The 21-year period begins to run when “there is some act of possession by the adverse claimant `* * * so open, notorious and hostile that it constitutes, in law, notice to the real owner.'”

Failure of proof of any of the elements of adverse possession results in failure to acquire title by adverse possession. NC ENTS., LLC v. Norfolk & W. Ry. Co., 2024 Ohio 1454 – Ohio: Court of Appeals, 9th Appellate Dist. 2024

Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal. State v. Eppinger, 743 N.E. 2d 881, 887, 91 Ohio St.3d 158 (2001).