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Asked in Columbus, OH Sep. 09, 2013 ,  2 answers Visitors: 82
If an area was developed in1950 and there are enchroachments, how is it settled?
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2 Answers


Posted on / Sep. 12, 2013 14:56:42

if these issues are a serious concern for you then you MUST address them before you close on the property
surveys do not get recorded
only a survey will answer your questions
then as a result of the survey, someone would be able to address your concerns


Posted on / Sep. 09, 2013 18:36:36

I am not entirely clear on your question. If you are saying that you things have been as they are for 50 years you may be looking at a case of "adverse possession".

I honestly cannot picture well (not for your lack of description just long day) the situation how it would look.

In Ohio, Adverse Possession though probably will play a role if 50 year issue. You would have acquired possession (or lost possibly) if ALL of these elements are met: exclusive possession and open, notorious, continuous, and adverse use for a period of twenty-one years." Grace v. Koch (1998), 81 Ohio.St.3d 577, 692 N.E.2d 1009, syllabus. In order to establish the necessary twenty-one year period, a party may add to their own term of adverse use any period of adverse use by prior succeeding owners in privity with one another. Zipf v. Dalgarn (1926), 114 Ohio.St. 291, 151 N.E. 174, syllabus.

That is if it were your issue for 4 years and someone else's for 46 you could establish. As I cannot quite picture right now I would say likely the "encroachments" have changed the ownerships.

"A successful adverse possession action results in a legal titleholder forfeiting ownership to an adverse holder without compensation. Such a doctrine should be disfavored, and that is why the elements of adverse possession are stringent." Id., at 580, 692 N.E.2d 1009, citing 10 Thompson on Real Property (Thomas Ed.1994) 108, Section 87.05.

{¶21} It is the visible and adverse possession with an intent to possess which constitutes the adverse character of the occupancy. Grace, 81 Ohio.St.3d at 581, 692 N.E.2d 1009, citing Humphries v. Huffman (1878), 33 Ohio.St. 395, 402. In other words, " 'there must have been an intention on the part of the person in possession to claim title, so manifested by his declarations or his 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.' (Emphasis sic.)" Grace, 81 Ohio.St.3d at 581, 692 N.E.2d 1009, quoting Lane v. Kennedy (1861), 13 Ohio.St. 42, 47. Courts do not require the title owner of the property to receive actual notice of adverse possession as long as that owner is charged with knowledge of adverse use when one enters into open and notorious possession of the land under a claim of right. Vanasdal v. Brinker (1985), 27 Ohio.App.3d 298, 299, 500 N.E.2d 876. The adverse occupancy of the land must be sufficient to notify the real owner of the extent of the adverse claim. Humphries, 33 Ohio.St. at 404.

Adverse Intent

I would imagine much like in the case I am looking "{¶25} "* * * Plaintiffs believed over the years that they were the lawful owners of said property. Their continued use of the land, therefore[,] was not hostile or adverse." (03/04/2008 J.E., p. 7, ¶37.)"

"We have never held that a claimant must establish subjective intent to acquire title to real property of another to prevail on an adverse possession claim. The adversity element has been explained this way: 'It is the visible and adverse possession with an intent to possess that constitutes [the occupancy's] adverse character, and not the remote motives or purposes of the occupant.' Humphries v. Huffman (1878), 33 Ohio.St. 395, 402. This 'occupancy must be such as to give notice to the real owner of the extent of the adverse claim.' Id. at 404.

I hope this helps. I know I am not getting into all. I can say if you see it an issue in the future as to the encroachment on your land you can very easily now END the "adversity" (although it may be too late). If you simply remove one element it does not exist. You could have a self-survey done find out, and as to who is encroaching on your land simply state "your property is apparently (if it is) encroaching" "I have no issue with this at this time". That immediately gets rid of the "adverse".

I would discuss with an attorney how AP affected, but keep neighbors depending on relationship in mind

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