Can a Trespasser Become a Property Owner Through Occupancy?

An adverse possession action will result in a legal owner of real property having to forfeit their ownership interest to another, without compensation.  An example would be an incorrect fence placement that results in the user of property owned by another ultimately becoming the rightful owner of the property by adverse possession.

In order for a party seeking to obtain title to property by adverse possession, they must prove certain very stringent elements by clear and convincing evidence.  Those elements are:

• Exclusive possession
• Possession that is open, notorious and continuous
• For a period of 21 years

Ohio’s Fifth District Court of Appeals recently denied a neighbor’s claim for adverse possession of an adjoining 11 acres of land.   The Court found the adjoining landowner’s father permitted the neighbors’ parents to use the land to water their cows and the permission was never revoked.  However, the neighbors’ parents passed in 2008, so the children only openly possessed the land for the preceding 9 years.  Last, the Court found that the neighbors did not improve the land or otherwise prevent its true owners from using the property in other ways, thus their possession was not exclusive.  Wischt v. Heirs of Peral Ruth Mourer; 2017-Ohio-8236.

Had the facts of the preceding case differed, the owner could have lost his 11 acres without compensation.  There are both state and federal statutes governing adverse possession.  In some states, the law requires the possessor to do more than just occupy the land, but do other things like improve it or pay taxes on it.  Ohio’s law differs in that the possession cannot be permissive (or conferred by grant).  Rather the possession must be “adverse” or non-permissive.

Landowners can take steps to avoid an adverse possession claim.

• Post No-Trespassing Signs
• For larger tracts construct fencing
• File police reports promptly against trespassers
• Rental or permissive use agreements should be in writing

Buyers should inspect the property and make inquiry on any area that appears to be possessed by another.  Retaining a surveyor can aid in determining the property’s boundaries and of course request copies of any rental or possession agreements.

Licensees should recommend any clients that may be dealing with an adverse possession claim to consult with legal counsel.  Unfortunately for landowners, time is not friendly when it comes to adverse possession.