Adverse possession is one of those quirky legal concepts that does not get much press. Even so, it can be a useful tool for asserting a bona fide right to property under certain circumstances.
In March 2017, the Seventh District Court of Appeals considered the doctrine in the case Bailey v. George. It affirmed the Columbiana County Court of Common Pleas’ decision in favor of the plaintiff, thus granting him the right to the use and possession of the 12 by 154 foot strip of land located on the edge of the defendants’ property, where it abuts that of the plaintiff.
In his trespass and adverse possession complaint against the defendants/neighbors, the plaintiff sought to quiet title by showing that he had acquired title to the strip of land lawfully, in 1994, from his parents, that in turn, they had acquired it in 1955. In support, he produced deed records, a survey map, and legal description of the strip of land, along with several affidavits, which ultimately established his claims.
The court recognized that on an adverse possession theory, in order to win his case, the plaintiff had to prove, by clear and convincing evidence, that he had “exclusive possession and open, notorious, continuous, and adverse use for a period of twenty-one years.” Thus, the court discussed each element, and the evidence pertaining to it.
- Adverse and Hostile Use: pointing out that satisfaction of this elements does not require a “heated controversy, or a manifestation of ill will, or that the [parties were] in any sense an enem[ies]…” the court acknowledged the legal standard, that “any use of the land inconsistent with the rights of the titled holder” constitutes adverse or hostile use. More specifically, “there must have been an intention on part of the person in possession to claim title, so manifested by his declarations or acts, that a failure of the owner to prosecute within the time limited, raises a presumption of an extinguishment or a surrender of his claim.”
The plaintiff’s affidavits established that he and his predecessors exercised control and dominion over the property rights of the legal titleholder, the defendants/neighbors, when they improved the nature and appearance of the land by 1) cutting down trees; 2) trimming trees and hedges; 3) raking and picking up fallen leaves and other debris; 4) using the minerals gathered and collected for personal purposes, such as having fires; and 5) excavating and grading the soil. In addition, they verbally prevented others from using the land, and they never received permission to use the land.
- Open and Notorious Use: to satisfy this element, the court noted, the “use of the disputed property must be without attempted concealment…the use must be known to some who might reasonably be expected to communicate their knowledge to the owner if he maintained a reasonable degree of supervision over his premises.” Moreover, there is a presumption in the law that “an owner of property knows the condition and status of his land. Thus, an owner is charged with the knowledge that a party is open and notoriously occupying his property where that occupancy is plainly visible to him.”
Like with the first element, to prove this one, the plaintiff’s affidavits asserted that he and his predecessors 1) cut down trees; 2) trimmed trees and hedges; 3) raked leaves and burned vegetation on the contested land; and 4) excavated, graded and leveled the land, thereby changing the geographical and terrain features. The affidavits also stated that the plaintiff used the land for storage purposes, and that the contested strip was located in a residential area, within sight of other neighboring properties.
- Exclusive Possession: Satisfaction of this element requires exclusivity as to the true owner entering onto the land and asserting his right to possession, and of third parties entering the land under their own claim of title, or claiming to have permission to be on the premises from the true titleholder.
The plaintiff provided undisputed evidence showing that 1) he and his family had owned their property since September 6, 1955; 2) the plaintiff’s predecessors entered onto and began using the contested strip in 1959; 3) no one other than the plaintiff and his family used the contested strip; and 4) they prevented others from using it. These facts were undisputed for the time period of 1959-May 9, 2001.
- Continuous Use for at Least 21 Years: For this element, the undisputed evidence demonstrated that the plaintiff and/or his predecessors continuously used the contested strip for a period of 42 years prior to May 9, 2001.
This was significant because when adverse possession is continued for a period of greater than 21 years, the rights of the record property owner are cut off, and those rights are vested in the adverse possessor….When this occurs, the title of the record property owner is destroyed, and title is vested in the adverse possessor.
For all of these reasons, the court held that the plaintiff had met his burden, by clear and convincing evidence, that he or his predecessors openly, exclusively, notoriously, adversely, and continuously used and possessed the contested strip from 1959 until at least 1980.