If you’re a property owner in Ohio, you likely have two or three neighbors whose land borders yours. While it may seem surprising, those neighbors might be able to gain legal title to pieces of your property under a legal concept called adverse possession. And while less likely, an unknown trespasser could also squat on your land and, over time, develop a claim to legal ownership.
To make sure that your land remains yours and that a neighbor isn't able to lay claim to a portion of it, this article will give you an outline of Ohio’s laws on adverse possession.
Or, there may be times when you yourself need to assert an adverse possession claim, over land that you've been using for a long time, and therefore feel you’ve developed a right to own.
Adverse possession is a legal doctrine that allows a trespasser – possibly a stranger but more likely a neighbor – to gain legal title over land that is or was owned by another. The concept comes from early Britain, but has remained as a way to bring about a just result when one owner has neglected or forgotten about a piece of land while another has been using or caring for it. To force the actual possessor of the land to depart might, in such a case, create hardship.
Adverse possession in Ohio is regulated by statute, but also by the state courts. They don't make it easy for someone to claim land in this way. The burden of proof to establish a claim of adverse possession is squarely on the trespasser. Whoever holds legal title to the land is its presumed owner until and unless the adverse possessor can meet that burden. In other words, it is the trespasser’s job to prove to an Ohio judge that he or she merits ownership of the land in question.
There is no single statute in Ohio that spells out the elements that a trespasser must establish to prove adverse possession. Rather, the courts have established a variety of such factors through their decisions in individual lawsuits over many decades.
As in most states, someone seeking to prove adverse possession in Ohio must supply evidence that his or her possession of the property has been:
1) hostile (against the right of the true owner and without permission)
2) actual (exercising control over the property)
3) exclusive (in the possession of the trespasser alone)
4) open and notorious (using the property as the real owner would, without hiding his or her occupancy), and
5) continuous, for the statutory period (21 years in Ohio under Ohio Rev. Code Ann. § 2305.04).
For example, imagine that Benjamin and Jackie live next to one another in Toledo. The boundary between their properties isn't marked by any fence or other divider. Benjamin builds a doghouse on Jackie’s side of the property, covering about four square feet of earth. Jackie doesn’t say anything. Benjamin often visits the doghouse, to take food to his dog, and so forth. He does this for 21 years and a succession of dogs. Under the rubric described above, Benjamin can probably establish that he “owns” the land on which he was encroaching. Jackie could have stopped Benjamin by demanding over those 21 years that he remove his doghouse, or sign a rental agreement to establish that the use was by mutual consent. But Ohio courts will not allow Jackie to suddenly eject Benjamin after sitting on her rights for over two decades.
The doctrine of adverse possession protects a person who has honestly entered and held possession in the belief that the land is his or her own, as well as one who knowingly appropriates the land of another for the specific purpose of acquiring title. In other words, Ohio law contains no requirement that the adverse possessor's entry and continued possession of the property have been done with knowing or intentional hostility.
Rather, any entry and possession for the required 21 years that is exclusive, continuous, hostile, actual, and open – even the person mistakenly thought he or she had title – is sufficient to support a claim of title by adverse possession. In our example above, it doesn’t matter whether Benjamin built the doghouse knowing that he was on Jackie’s land, or whether he built it mistakenly thinking it was on his own land. His intent has no bearing on his eventual claim for title under adverse possession.
In some states, the payment of property taxes by an adverse possession claimant can be used to establish title. However, there is no such statutory requirement in Ohio. Paying taxes is not, in and of itself, sufficient to constitute adverse possession. However, uninterrupted payment of taxes on a particular property for more than 21 successive years would certainly be powerful evidence in support of a claim of adverse possession.