For Industry Professionals, Managers, Trades & Suppliers
J. NORMAN STARK, ATTORNEY and REGISTERED ARCHITECT
JURIS DOCTOR, B. ARCHITECTURE, B.F.A.
17000 St. Clair Avenue . Cleveland, Ohio 44110-2535
Tel.: (216) 531-5310 . Fax: (888) 833-5860 . E-Mail: www.Normstark@aol.com
In Florida . 6500 Midnight Pass Rd. #105 . Sarasota, FL 34242 . (941) 349-2061.

Vol. 2008-12 December, 2008

REAL PROPERTY - ADVERSE POSSESSION

A recent opinion of the Ohio Supreme Court reaffirmed the law of adverse possession: "Adverse possession - Nature of intent that shows possession to be adverse - The legal requirement that possession be adverse is satisfied by clear and convincing evidence that for 21 years, the claimant possessed the property and treated it as the claimant's own - Judgment affirmed. (Decided August 5, 2008.)

The pertinent parts of the Court's decision held:

{ 6} We now determine whether adverse possession requires a showing of subjective intent, meaning that the party in possession intended to deprive the owner of the property in question. We hold that it does not.

{ 7} It is well established in Ohio that to succeed in acquiring title by adverse possession, the claimant must show exclusive possession that is open, notorious, continuous, and adverse for 21 years. Grace v. Koch (1998), 81 Ohio St.3d 577, 579, 692 N.E.2d 1009, citing Pennsylvania RR. Co. v. Donovan (1924), 111 Ohio St. 341, 349-350, 145 N.E. 479; State ex rel. A.A.A. Invest. v. Columbus (1985), 17 Ohio St.3d 151, 153, 17 OBR 353, 478 N.E.2d 773; Gill v. Fletcher (1906), 74 Ohio St. 295, 78 N.E. 433, paragraph three of the syllabus; Dietrick v. Noel (1884), 42 Ohio St. 18, 21. The issue is how the claimant's intent relates to the legal element of adversity.

{ 9} In an early case, this court addressed the precise issue of whether the element of adversity requires that a person possess the subjective intent, meaning the actual motive, to claim the property of another. Yetzer v. Thoman (1866), 17 Ohio St. 130. There, the court considered a jury instruction on adverse possession that stated: " `The plaintiff [seeking title through adverse possession] must have knowingly and designedly taken and held the land to enable him to claim the benefit of the statute. Occupancy by accident, or mistake, or ignorance of the dividing line, is not sufficient.'
and held the land to enable him to claim the benefit of the statute. Occupancy by accident, or mistake, or ignorance of the dividing line, is not sufficient.'

{ 10} Yetzer remains Ohio law, and we have no reason to revisit it. Although we recently denied the use of adverse possession against a park district, we recognized the continuing viability of the doctrine in Houck v. Bd. of Park Commrs. of the Huron Cty. Park Dist., 116 Ohio St.3d 148, 2007-Ohio-5586, 876 N.E.2d 1210, 30.

Conclusion { 13} 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. Yetzer, 17 Ohio St. 130. 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. Evanich v. Bridge, 119 Ohio St.3d 260, 2008-Ohio-3820

Honest people will respect us for our merit; the public, for our luck.
Francois, Duc de La Rochefoucauld (1613-80)

AUTHOR / EDITOR: J. NORMAN STARK is an Attorney-at-Law, a Registered Architect, (AIA, NCARB) Registered Landscape Architect, Interior Designer, Planner and Senior Appraiser (ASA), admitted to practice law before the Bar of Ohio, the US District Courts, Ohio and Illinois (Central Dist.), the US Court of Appeals, and the United States Supreme Court. He is a Mediator, Arbitrator and Litigator with experience in Business, Construction Law, and Public Works, and with additional experience in Real Estate, Construction Attorney (Legal Project and Crisis Management), and as an Expert Witness (Forensic Architect). His office is in Cleveland, Ohio.

home | consulting | public speaking | law letters | selected publications | background | contact