ADVERSE POSSESSION: Legally Stealing Real Property; But What if there is an Intervening Dispossession or Divorce from the Land?
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Legally Stealing Real Property
But What if there is an Intervening Dispossession or Divorce from the Land?
There is a legal method of stealing real estate called adverse possession. If you adversely possess someone’s property for 21 years, you can claim ownership of it. The acronym “OCEAN” is an easy method to remember the elements that must be proved to succeed in an adverse possession claim: Open, Continuous, Exclusive, Adverse and Notorious.
The typical adverse possession case does not involve a squatter who moves onto a property to live. Rather, it is usually a neighboring land owner who uses land beyond his boundaries as his own. Some might think that this would only occur in a rural setting where farmers have vast boundaries that they may not thoroughly control or pay strict attention. However, it can occur easily in an urban setting. One case that this firm handled involved a neighbor who placed a fence beyond his borders and proceeded to cut the grass and care for the patch over the years. When the 21 years had passed and the next door neighbor realized where the true boundary line existed, the fight began.
The adverse possession must be Continuous for 21 years. That does not mean that there must be only one adverse possessor over the 21 year period. There can be “tacking,” which is a chain of adverse use by succeeding owners. For the adverse claim to succeed through tacking, the chain cannot be broken. If the rightful owner reclaims the land even temporarily or gives consent for temporary use to one of the owners in the chain, the chain is broken and no adverse claim can succeed.
What happens if an owner loses possession of the property for a couple of years to his wife because of their divorce per the divorce decree, and later takes possession of the property, can he claim adverse possession against the neighbor’s property? What if the now disgruntled ex-wife wants to testify for the neighbor that she had no intention to adversely possess his property during her possession? This is exactly the facts facing the Court in Arnholt v. Carlisle , a recent decision (June 6, 2011) out of the Fifth District Court of Appeals in Ohio.
The trial court in Arnholt limited the ex-wife’s testimony to her personal knowledge of the boundaries. Her testimony outside of the jury’s presence was proffered for purposes of appeal, where she asserted her lack of intent to claim the adverse possession of the property. Not hearing that part of the ex-wife’s testimony, the jury found for the claimant that there was adverse possession.
The appellate court in Arnholt sided with the trial court that the ex-wife’s testimony was properly limited. The appellate court held that Ohio law does not require proof of subjective purpose in a claim of adverse possession. It was not necessary to show knowledge or wrongful intent on the part of the adverse claimant. The legal requirement that possession be adverse is objective and is satisfied by clear and convincing evidence that for 21 years the claimant possessed property and treated it as the claimant’s own. The disgruntled wife’s testimony about her intent was thus irrelevant and properly not permitted to be heard by the jury.
The Arnholt appellate court pointed to the evidence presented by the claimant regarding the activities on the disputed property during the claimant’s absence. The appellate court indicated that: the large numbers of trees planted by claimant continued to thrive in the disputed area; there was no evidence that he abandoned construction material that he placed there; additional items such as a truck cap and some animal kennels were added; and his ex-wife and his children continued to mow the area and continued to use a burn pit located there. Based on these facts, the court found no basis to disturb the jury’s conclusion of adverse possession.
Adverse possession cases can be very fact specific. Unearthing evidence over such a long period of time can be difficult for both sides. However, providing as much evidence as possible can make all the difference in acquiring or losing the disputed land.