- Jim Schroeder
Your Crazy Neighbors and Adverse Possession
Do you own your property? Well of course!
Not so fast. You have to pay taxes so there is that. Also, some properties require payment to a Homeowners Association. What if you are required to hook into municipal water and sewer?
So yes you own the property. Well wait unless you have crazy neighbours who are hatching a plot to take part of your property from you!
There are several legal concepts related to private property rights in the United States. One of these legal concepts is the right of private property owners to prevent unwanted visitors from entering their properties. Signs, fences, and electronic security systems often work together to keep intruders away. A private property owner can also call the nearest law enforcement agency for assistance in the case of an unlawful intruder.
You might be surprised to find out that when a trespasser has been on a property for a long time, the trespasser may legally own the title to the land. This is known as adverse possession.
What is Adverse Possession?
Many Americans raise an eyebrow when they find out that under specific legal circumstances, a trespasser can enter private property, remain on it, and eventually become the legitimate owner of the property. As the legal term for this maneuver, adverse possession allows a trespasser to acquire property ranging from just a few feet to dozens of acres. Some instances of adverse possession happen by mistake, such as when a neighbour builds a fence line that runs several feet into someone else’s property.
Adverse possession cases frequently end up in court because the property owner files a lawsuit against the trespasser. Also, a trespasser can file a claim called a “quiet title” that asks a civil court judge to decide which party owns the private property in question.
Legal Requirements for an Adverse Possession Claim
For a civil court judge to rule in favour of the trespasser in an adverse possession claim, the trespasser must provide evidence that satisfies some requirements. Four requirements must be met for a case to qualify as adverse possession.
· Open and notorious
· Exclusive and continuous for a designated amount of time
Hostile does not mean a trespasser crashes down a security gate with a triple-plated armoured vehicle. It implies that a trespasser has occupied at least some portion of private property without permission. The trespasser is also aware that he or she has gained access to someone else’s property. A good faith mistake means the trespasser did not know the property belongs to another person.
The second criterion for proving adverse possession is called actual possession, which means a trespasser took the property and began treating it as if he or she owned it.
Open and Notorious
Open and notorious is the act of trespassing evident to everyone that the trespasser is using the property, as the original owner might use it. An example of open and notorious is when a neighbour pours concrete for a driveway that runs a few feet over the property boundary line.
Exclusive and Continuous
Finally, to lay an adverse possession claim, only the trespasser can lay claim to private property. This means there cannot be a partnership. Also, the property must have been in use, uninterrupted for a state-mandated period.
Adverse Possession in Ohio
As of July 2020, Ohio does not have a law on the books defining the elements a trespasser must establish to prove adverse possession. Like many other states, Ohio uses four factors to determine the presence of adverse possession: hostile, actual, open and notorious, and exclusive and continuous.
To meet the continuous criteria, Ohio law requires a statutory possession period of 21 straight years. The legal doctrine of adverse possession in Ohio does not consider the trespasser’s intent. It does not matter whether the trespasser took over the private property knowing the act was illegal, or he or she is demonstrating intentional hostility.
How to Stop Adverse Possession
Preventing adverse possession starts with property owners paying attention to their properties. Regularly scheduled property inspections can help you detect even the most subtle changes.
Here are a few other ways to stop adverse possession:
· Post “No Trespassing” signs
· Install gates at every possible point of entry
· Permit someone to use your property in writing
· Contact law enforcement
· Hire a real estate attorney
You might have to file a lawsuit to evict a trespasser from your property. An Ohio licensed real estate lawyer with experience handling adverse possession cases can be a forceful legal advocate for you during a civil lawsuit.
Watch out for those neighbours!
James Schroeder is an attorney licensed to practice in Ohio, Pennsylvania, New York, New Jersey, and the District of Columbia focusing on real estate, estate planning, business and nonprofit law. He maintains offices in Sardinia Ohio and Egg Harbor City New Jersey. You may reach him at (973) 886-4563 or (609) 270-7590. Most of his clients come from Sardinia, Mount Orab, Georgetown, Russellville, West Union, Peebles and Seaman in Ohio and Egg Harbor City, Hammonton, Port Republic, Galloway and Mullica Township in New Jersey but if you are from anywhere in Ohio, Pennsylvania, New York, New Jersey, and the District of Columbia can call to discuss your legal issues.