Toledo, Ohio personal injury attorney Dale Emch explains adverse possession in "Legal Briefs" column

Toledo, Ohio personal injury attorney Dale Emch addressed the subject of adverse possession in his November 25, 2007 Toledo Blade column, “Legal Briefs.” Adverse possession can be a perplexing topic, as Toledo, Ohio personal injury attorney Dale Emch explains. Attorney Emch also handles cases involving workers compensation, medical malpractice, dog bites, and criminal defense, as well as DUIs.

Dear Dale: In 1951, my parents’ neighbors built a detached garage that extended nine inches into my parents’ property. When the garage was about 90 percent complete, my father noticed the problem and spoke with our neighbors — let’s call them the Joneses
My father verbally agreed to ignore the incursion. Fast-forward 55 years. My father, who has since passed away, gave the neighbors who bought the Jones property — let’s call them the Browns — permission to build a privacy fence. The fence extends another nine inches into my mother’s property. It’s my understanding that my mother can’t do anything about the neighbors’ garage because of a concept called adverse possession, but can she do anything about the fence?

I wrote the Browns a letter stating the fence is on my mother’s property and will only stay up for as long as she deems appropriate. Does my mother have the right to have the fence removed?

Answer: The harsh reality of adverse possession tends to blow people away when they hear about it. I know I couldn’t believe it when I first learned that someone can actually lose property in certain circumstances, usually in situations like you’ve described where a neighbor builds a fence or places a structure across a boundary line.

First, you should know that courts frown on allowing property to be acquired through adverse possession. It would be bad policy to encourage people to gobble up property without paying compensation to the owner. The adverse possessor must meet a high burden of proof in order to prevail. To take title to land by adverse possession, the person claiming title through this method must show exclusive possession of the land, and that the use was open, notorious, continuous, and adverse for at least 21 years. In other words, the would-be owner has to have exclusive use of the land claimed, the use has to be known to the original property owner, it has to last for 21 years, and the act has to be adverse to the property owner’s interest. The adverse use is sometimes termed “hostile.”

In your situation, let’s look at the issue of the garage first. I would argue that because your father granted permission to allow the Joneses to keep the garage on your parents’ property the use was never adverse or hostile. Viewed from that perspective, the adverse possession clock never started ticking and your mother could ask that the garage be moved. Some of the case law I read characterizes what your father did as granting a license that can be revoked at any time.

The privacy fence presents an easier issue simply because it sounds as though it was only built within the last few years. So, not only did your father give permission, but the statutory time of 21 years hasn’t run. There’s no adverse possession argument here. You did the right thing by sending a letter to the Browns to put them on notice that your mother may ask that the fence be removed at any time. I hope you kept a copy of it and that you sent it by certified mail.

If you decided to push the garage issue, I’d expect the Browns to argue that the use was adverse and that they’ve acquired ownership through adverse possession. Alternatively, I’d expect them to contend that the garage and fence should stay because they relied on your father’s representation that it was OK to build both. That said, I’d rather be in your shoes than theirs.

Obviously, there’s no guarantee a judge would go your way. But, even assuming the law is on your side, you have to figure out where you want to go from here. If you really want the garage moved, I’d suggest writing a letter to the Browns and sending it by certified mail. State your position and request a meeting. If they won’t meet your demands, you could initiate legal action. Or, you could offer to sell them the portion of property taken up by the garage and fence.

Given the length of time the garage has been on your parents’ property, it’s probably not that big of a deal to you. But you might want to consider tackling the issue in case your family decides it wants to sell the property in the future. You wouldn’t want a property line issue to sink a sale or have it come up down the road long after the land has been transferred. Addressing the problem now might save you from having to deal with it later.