The Supreme Court of Ohio ruled yesterday in Evanich v Bridge (Slip Opinion No. 2008-Ohio-3820) that subjective intent of one party to acquire property of another is not required to prevail on an adverse possession claim; rather, the claimant must show by clear and convincing evidence that he possessed the disputed property and treated it as his own for a period of 21 years. The Court’s ruling was a 7-0 decision.

Facts of the Case: The case involved a dispute over ownership of a small strip of land that forms the boundary between two residential lots in Elyria. The Evaniches installed a border of fencing, railroad ties and landscaping on their (according to the Evaniches) side of what they believed was the property line, unaware that these materials actually encroached on the neighboring parcel. A house was later built on the neighboring parcel. Ten years later, the Bridges purchased and moved into that neighboring lot. The two families continued to occupy their homes for the next 25 years without discovering the encroachment. Then, the Bridges had their land surveyed and discovered that the Evaniches' fencing and plant beds encroached onto the Bridges’ property. The Bridges then asked the Evaniches to relocate the encroaching materials. Instead, the Evaniches filed a court action seeking a declaration that the Evaniches had acquired legal ownership of the disputed land through adverse possession.

Case History: The Lorain County Court of Common Pleas granted the Evaniches’ adverse possession claim and the 9th District Court of Appeals affirmed the lower court’s ruling. The Bridges then appealed to the Ohio Supreme Court.

The Court's Reasoning: The Ohio Supreme Court ruled that it did not matter whether the Evaniches intended all along to use the additional property as their own or whether construction of the fencing and landscaping beyond their own property was a mistake. The court stated: “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 Evaniches testified that it was in fact a mistake, and they would never have planted and fenced where they did, had they known that property belonged to their neighbor.

The Court cited over 100 year old case law to reiterate the classic elements (that need to be proven to prevail upon a claim) of Adverse possession, that those who went to law school know by the acronym "OCEAN". In other words, to acquire title to property by adverse possession, the use, for 21 years or more must be Open; Continuous; Exclusive; Adverse and Notorious. The Court clarified that to prove adverse use, intent still must be shown, but only the intent to occupy and treat property as one’s own, not the motive or intent to take the property of another away. Objective not subjective intent is all than has been needed to prove the adverse element of adverse possession for 140 years, the Court reasoned, and consequently, they were (as stated by the Court) “unwilling to alter a rule that has successfully directed the application of the doctrine of adverse possession for so long”.