Navigating Ohio's Boundary Battles: Unraveling Adverse Possession and Prescriptive Easement

Ohio recognizes legal doctrines that can give you ownership or a right to use or access another’s property without an explicit agreement between you and the other property owner. The doctrines that can provide ownership of another’s property are: adverse possession, acquiescence, and estoppel. Another doctrine, prescription (also called a prescriptive easement), allows you to use or access another’s property without obtaining actual ownership. In considering the differences between these doctrines, it is important to determine whether you seek ownership of use/access to a certain property.

Ownership of Another Property: Adverse Possession, Acquiescence, and Estoppel

If you succeed in satisfying any of these three doctrines, a court will transfer ownership of the other person’s property to you, even if title to the property was originally in the name of that other person. However, courts are reluctant to transfer ownership of a property to another through these three doctrines because property rights are fundamental to American society and these doctrines cause a titleholder to forfeit her ownership to an adverse holder without receiving compensation for her loss.

From Ohio Revised Code § 2305.04 and Ohio case law, courts have held that a person seeking to obtain the property of another must demonstrate by clear and convincing evidence that they have been in (1) actual, (2) open and notorious, (3) hostile, (4) exclusive, and (5) continuous possession of the disputed property for at least 21 years.

• Actual possession means you have actually entered the property of another and used it as an owner would do so.
• Open and notorious possession means that the titleholder is aware of your use of the property. Concealed use of the property does not meet this standard.
• Hostility does not necessarily mean that there is any ill-will between you and the titleholder, but simply that you have used the property without the titleholder’s permission.
• Exclusivity means that you have possessed the property and excluded other persons, including the title holder, from using the property. Excluding others does not necessarily mean that you have actively discouraged others from using the property, but that only you have used the property.
• Continuous possession for 21 years of a property does not mean daily or constant use, but regular use that demonstrates you own the property. For example, if you have mowed the grass and conducted landscaping projects on the property for more than 21 years, you probably have performed these activities seasonal, yet seasonal use can demonstrate continuity.

If you cannot succeed in demonstrating all the factors of adverse possession though, acquiescence and estoppel exist as alternatives.

Acquiescence applies when you and the titleholder have mutually treated a specific line as the boundary between your respective properties for 21 years. This doctrine can be used when one or more of the elements of adverse possession cannot be satisfied. As long as the boundary line has been treated as such for 21 years, then a court may find that you own the disputed property through acquiescence.

Estoppel exists when you have satisfied all the elements of adverse possession, except hostility. Courts will specifically consider whether (1) the titleholder knows the true boundary of her property, (2) the titleholder knows you would rely on her conduct regarding the boundary, which did not conform to the description in the title, (3) you relied on the titleholder’s conduct in ignorance of the title of the line described in the title and used the property anyway, and (4) you would suffer injustice if the titleholder was permitted to establish the boundary line as stated in the title since you have been using and maintaining the property for at least 21 years, believing that you were the owner in fact.

Use of or Access to Another Property: Prescription (Prescriptive Easement)

A prescriptive easement allows you to use the land of another without obtaining actual ownership. The elements for a prescriptive easement are similar to the elements of adverse possession except that the element of exclusivity is eliminated, since an easement is access to another property and the titleholder also has a right to use the easement; this could be in the case of two different property owners using a driveway to park their cars, for example.

Thus, to satisfy the elements of a prescriptive easement, you must demonstrate that you have been in (1) actual, (2) open and notorious, (3) hostile, and (4) continuous use of the disputed property for at least 21 years.

Like the three doctrines mentioned above, courts are reluctant to grant prescriptive easements as use of another’s property in this manner also deprives the titleholder of her property rights without compensation.

Regardless of whether you seek ownership of or access to certain property, it is important to consult with an attorney to determine whether you have a strong case that satisfies any of these doctrines.

For questions about these doctrines or other related property issues, contact Austin M. Tinsley at 513.768.9709 or amtinsley@strausstroy.com. Austin regularly handles both commercial and residential real estate matters.