Squatter’s rights being sussed out in the Ohio Supreme Court

House cats understand squatter’s rights. Just watch them. We just added a third one to our household, and he knows the cat rules about jockeying for the best territory in the house. Right now, that is in the kitchen near the space heater. In fact, he is now stretched out in front of my computer screen, blocking part of my view.

Ohio actually recognizes a form of squatter’s rights, adverse possession, although it is very difficult to obtain land ownership this way. The elements of adverse possession in our state are exclusive possession, open, notorious and adverse use of the land for 21 years. All elements must be proven by clear and convincing evidence. A “quiet title” action is filed to claim ownership of land this way.

The Ohio Supreme Court heard oral arguments in an adverse possession case in May of this year. The parties in Don Koprivec, et al v. Rails-to-Trails of Wayne County, 2016-0704, are waiting for a decision. The issue before the Court is whether the actions of licensees on property interrupt the “exclusive possession” of adverse possession.

The property they are fighting over consists of eight miles of an old abandoned railroad corridor that runs through three parcels of land, owned by the Koprivecs (purchased in 1981), the Bilinoviches (purchased in 1996) and the Koontzes (purchased in 1998). The landowners exercised control and openly used the disputed property, regularly using it and caring for it. They posted no trespassing signs. They built structures. They ran out any trespassers.

By 1970, the disputed property was no longer used for trains. The Railroad removed the wooden rails in 1989. A property manager of the Railroad inspected the property in the 1990s and 2000s. AT&T and Sprint were granted 15-year licenses, with two 15-year renewal options during ownership by the Railroad. In 2007, one of the licensees cleared brush on the disputed property.

Rails-to-Trails of Wayne County, a non-profit, purchased this property from Norfolk Southern Railway in 2009, with the intent of converting it into a public trail. In February of 2011, the landowners filed a declaratory judgment and action to quiet title to the disputed property, alleging adverse possession. Rails-to-Trails promptly counterclaimed, asserting that the landowners were trespassing.

Rails-to-Trails was granted summary judgment in the trial court, which means they won without having to go through a trial. The landowners appealed, and the Ninth District Court of Appeals dismissed the appeal for lack of a final appealable order. So the trial court again granted summary judgment to Rails-to-Trails, finding that the recorded licensing agreements between the Railroad and AT&T and Sprint and their related activities were sufficient to defeat the exclusive use element of adverse possession.

The landowners appealed to the Ninth Circuit again. This time the appellate court reversed, finding that the trial court erred in granting summary judgment to Rails-to-Trails because the licensing agreements between the Railroad and AT&T and Sprint and their related activities were not sufficient to defeat the exclusive use element of adverse possession. One Judge held that the licenses were irrevocable and essentially easements.

The Ohio Supreme Court accepted the case. And now the parties wait to see how the Supreme Court views the actions of the licensees. Adverse Possession is disfavored under Ohio law, but the facts and issue before the Court makes for an interesting case. Will the activities to install and maintain fiber optic cables, including a massive right-of-way brush clearing in 2007 be sufficient to defeat the adverse possession element of exclusivity? I will be looking for this decision.

Meanwhile, if you are a property owner, think like a tomcat. Mark your territory, so to speak. In this case, if the Railroad had paid more attention to the disputed eight acres and made sure all neighboring landowners knew it was their property, this case would never have happened. Regular inspections and prohibiting and enforcing unauthorized use of the acreage would have stopped an adverse possession claim before it started and created years of litigation and thousands of dollars in legal fees.