Adverse Possession and How Good Fences May Not Make Good Neighbors
For some reason lately, I've had several questions come up that basically come down to I/my neighbor has built a fence across/used property belong to the adjacent property for years, the arrangement is now causing some sort of problem, and now someone wants to know if they can claim this land/if they can throw the interlopers off the land being "borrowed".
So I'd already decided to post on this topic when lo and behold the Ohio Supremes issue an opinion on precisely this question in Evanich v. Bridge, 2008-Ohio-3820. (As always, the Ohio Supreme Court's Office of Public Information has issued an excellent summary of the decision.) This case answers the question: does it matter if the use/occupation of the other person's land was unintentional, i.e. do you have to intend to take something you know is not yours? In finding that the intent of one person to possess the land of another person is determined by an objective rather than subjective standard, the Ohio Supremes may have thrown a new wrinkle into the analysis.
Adverse Possession Defined. This sort of situation raises what lawyers call "adverse possession" - which is one of the few concepts from law school not directly part of my practice that I seem to remember all these years later. The short answer is that it takes a a REALLY LONG TIME for "adverse possession" to kick in to alter the ownership rights to real property.
The longer answer is that the fence or other use of someone else's real property must be "open and notorious" for a number of continuous years that varies somewhat from state to state. In Ohio, the magic number is 21 years. Ohio courts require that the use/occupation of the land be such as to put the true owner on notice that someone is asserting an adverse/hostile claim to the property. Thus if the use/occupation of the land was done with the express or implied permission of the true owner, "adverse possesssion" cannot be established.
An Example. A few years ago I represented a client interested in selling a portion of some commercial acreage he owned to another party who intended to construct a manufacturing facility on the real property. Because the portion of the property being conveyed did not directly abut a public street, access was understandably a critical issue in the transaction for the buyer.
Some years before a private drive had been constructed along the edge of the property being retained which could be extended to the portion destined for the new owner. So the easy answer would seem to be simply to grant an easement to the buyer to provide access. Unfortunately, when it came time to prepare the proper legal description for the easement and the survey showing the roadway had been examined, it turned out that a portion of the private drive had been constructed on the other side of the property line separating my client's property from his adjacent neighboring landowners' property. Half the road had been constructed on the neighbor's vacant land.
Aside from the obvious lesson that this is why it really is important to have a survey done before undertaking construction or purchasing real property, this illustrates how adverse possession can come about. You can't get more "open and notorious" than running slabs of concrete across someone else's land, right? On the other hand, why complain if someone else wants to build something potentially useful to you on your land, but doesn't bother to charge you for doing it? In addition, the encroachment of the drive onto the adjacent property probably was inadvertent.
In this particular case, the requisite time period had not yet expired. However, it had been some time since the roadway had been constructed without objection and but for the desire to sell the property at that particular point, I think it quite likely that nothing would have disturbed the situation.
Evanich Case. The recent Evanich case is interesting because it involves a set of facts that has probably been played out many many times. After the Evanichs bought certain real property, they built a house on it and then in 1967 began doing some rather elaborate landscaping. Based on where they thought the property line was, the Evanichs installed a split rail fence, decrative rail ties, and various plantings along what they thought was the edge of their lot. When the neighboring property was sold ten years later, the landscaping was in place.
For some reason, the Evanich's neighbors decided to get a survey in 2002. When that survey was done, it was discovered that the landscaping encroached on the neighbor's property by approximately 97/10,000 of an acre. The neighbors then asked the Evanichs to remove the landscaping and they refused. The lawsuit ensued.
The trial court saw it Evanich's way, as did a majority of the Court of Appeals, and held that the Evanichs could keep the landscaping because they had successfully satisfied the elements of adverse possession. The dissenting Court of Appeals judge felt that the Evanichs had failed to demonstrate the requisite intent required to claim adverse possession since they never really intended to take their neighbor's land.
The Ohio Supreme Court also sided with the Evanichs, saying
In a claim for adverse possession, intent is objective rather than subjective in determining whether the adversity element of adverse possession has been established, and the legal requirement that possession be adverse is satisfied by clear and convincing evidence that for 21 years the claimant possessed property and treated it as the claimant’s own. This has been the law in Ohio for over 140 years, and we are unwilling to alter a rule that has successfully directed the application of the doctrine of adverse possession for so long.
The court of appeals concluded that the Evaniches had acted in a way consistent with true ownership by installing landscaping that included railroad ties, stone blocks, fencing, bushes, flowers, and at least one tree. It held that the Evaniches possessed the necessary intent based on their exclusive control over the property for 35 years. (emphasis supplied)
Analysis. Without giving it a heckuva lot of thought, I probably have assumed up to now that you had to have some sort of actual intent to take what's not yours to establish adverse possession - how else could it really be "adverse"? However, sticking with only the outward consequence of actions leading to adverse possession certainly does make it easier to apply a bright line test.
Ultimate Lesson. The ultimate lesson here is that if your neighbor puts up a fence along your mutual property line or starts driving over your property, it's probably worth your time to either (1)determine for sure where that property line is so you don't lose that land; or (2) make it extremely obvious that if there is an encroachment, you're letting it stay there permissively.
UPDATE: for further analysis of the Supreme Court's decision in Evanich, visit this post entitled "Ohio Supreme Court Rules that Possession of Another's Property by Mistake, Still 'Adverse' Possession" by Stephen D. Richman of the Ohio Real Estate Blog.
