Advanced commercial real estate law: Adverse possession and prescriptive easements in Ohio and Kentucky

In most circumstances, real estate law is a remarkably simple discipline: (a) read and understand the contract (or deed or declaration) and (b) the order of recording is the order of priority.  Now, these rules are not always followed, but they give us a general framework within which to practice.

However, two curveballs in real property rights are what we refer to as “adverse possession” or a “prescriptive easement.”

Adverse possession

An owner of land owns his property as against the claims of all others — it’s a pretty simple concept.  But in most states actual ownership can be “taken” from the owner — without a court proceeding — through “adverse possession.”  In Ohio the timeframe is 21 years and in Kentucky  it is 15 years.

In law school, we learn the acronym: O-C-E-A-N to describe the five claims the claimant must establish by a preponderance of the evidence to establish adverse possession.

  • Open
  • Continuous
  • Exclusive
  • Adverse
  • Notorious

The idea is that the claimant must in all manners have acted as the owner of the property, and have openly asserted to the world, continuously for the period of time in question, his ownership of the property.  This is a very tough standard, indeed.

A typical fact pattern we see as to adverse possession claims is that a claimant mows the law, trims the bushes, or operates an ATV across the disputed property (in fact owned by the neighbor) for a prolonged period of time.  The actual owner of the land comes to our firm to express concern about these activities.  Now, other than the public liability concerns for such activities (what if someone gets hurt!), there is a risk that the user will someday claim ownership of the land via adverse possession.  How do we prevent this?

It’s actually pretty simple to fix this.  If the user is using your land with permission, then the claim is by its nature not adverse.  So, I advise clients to send to their neighbors using their land a certified letter granting revokable permission for the use in question:

  • “Hey, I’ve noticed that for the past 10 years you have been cutting the grass on an acre of my property.  I wanted you to know how much I appreciate this and to give you permission to keep cutting my grass, until I change my mind.”  

It’s magical.  With one simple and polite letter, sent via certified mail and saved in a permanent place, you have eliminated any potential adverse possession claim, as long as it is sent before the 21 years (in Ohio) or 15 years (in Kentucky) lapses..

Now, there are many other issues with establishing an adverse possession claim:

  • What if there were multiple owners over that 21-year period of time?  That is OK as far as an adverse possession claim goes, but it presents a proof issue.
  • What if others have also used the land?  Then at best it is a prescriptive easement claim (see below).
  • Is “who pays the tax bill” dispositive as to an adverse possession claim?  It is persuasive, but not dispositive.
  • Can a tenant assert an adverse possession claim?  No, their occupancy is by its nature permissive, not adverse.

Prescriptive easement

A prescriptive easement claim is asserted and analyzed in the same manner as an adverse possession claim except:

  • The interest asserted is an easement interest, not a fee simple (ownership) interest;
  • The “E” from the acronym OCEAN is eliminated; the use does not need  to have been exclusive to establish a prescriptive easement claim.

The result of a successful prescriptive easement claim is not ownership of the disputed property, but rather establishes a non-exclusive easement to use the land in question for a specific purpose.  So, a shared driveway area or a common utility line would be classic examples of a claimed prescriptive easement.

How claim is asserted

I suppose neighbors could just acquiesce to the adverse possession of another, and lawyers and judges would not need to be involved, but that’s not typically how we see it working.  The way we see adverse possession asserted is that one neighbor sues another neighbor either (a) to stop an offending use or (b) to ask the Court to declare ownership of the subject property via adverse possession.  Because of the very long timeframes involved, the proofs can be difficult on each side.  Cases in which physical improvements have been built long ago are the easiest to establish an adverse possession or prescriptive easement claim.

Conclusion

The moral to this story is that a property owner cannot simply sit on and ignore his property rights; he must vigilantly defend them, lest their ownership just evaporate by his neighbor’s use of his property.  It does happen.

Most of the times this occurs in a commercial setting, it can be expensive and even interrupt operations of the business.  In the residential setting, most of these claims seem to settle as a result of the small value of the land at issue versus the tremendous cost of litigating.

I link below to few articles on adverse possession for further reading.

Adverse Possession Law >>

Adverse Possession: When Trespassers Become Property Owners >>

What Is the Difference Between Adverse Possession and prescriptive easements >>

If you become a party to an issue involving adverse possession or prescriptive easements, let the professionals of the Finney Law Firm “make a difference” for you.

 

Attorney | ‭513-943-6655 | chris@finneylawfirm.com | + posts

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