Christopher Sleeper - Writing Sample Adverse Possession

The facts of this case are fictional and provided for educational purposes.

COURT OF COMMON PLEAS

CUYAHOGA COUNTY, OHIO

JOHN AND SHEILA NORMAN

Plaintiffs,

vs.

JAMES AND DONNA WHITE

Defendants.

) ) ) ) ) ) ) ) ) ) )

CASE NO. 2010 CV 8989JUDGE GREEN

DEFENDANTS’ MOTION

TO DISMISS

PRELIMINARY STATEMENT

Despite owning 125 Elm Street for less than one year, plaintiffs John and Sheila Norman

(“plaintiffs”) seek to quiet title a strip of land owned by their adjoining neighbors, defendants

James and Donna White (“defendants”). The Whites granted permission to plaintiffs’

predecessors-in-interest, the Grays, to use this strip of land. The Grays used the driveway for

ingress and egress and generally maintained the property. Plaintiffs claim that the Grays’ use

was adverse. Under Ohio law, to be adverse, use must be such as to put the owners on notice

that their dominions have been invaded. The Grays’ use lacked the quality and sufficiency

necessary to put the Whites on such notice. Furthermore, permissive use is the opposite of

adverse use. Additionally, the Whites maintained their property interest by simultaneously using

the disputed land. Defendants request this Court to dismiss plaintiffs’ adverse possession claim

because (1) most of the twenty-one year period consisted of permissive use; (2) plaintiffs’ use

was not sufficiently adverse; and (3) defendants used the property and were never excluded.


STATEMENT OF THE FACTS

Plaintiffs John and Sheila Norman, recent inhabitants of 123 Elm Street, seek to

dispossess the White family of .03 acres of land through adverse possession. Complaint at ¶ 4.

Prior to 1979, the Whites owned both 123 and 125 Elm Street and the homes upon each lot. Id.

at ¶ 6. In 1979, the Whites sold their 123 Elm Street property to the Grays, the plaintiffs’

predecessors-in-interest. Id. Unbeknownst to either family, however, the property had been

divided such that, although the home and most of the property belonged to the Grays, the

driveway between the lots and a small strip of grass still belonged to the Whites. Id.

When the Whites learned of the true property line, they granted the Grays permission to

use the land. Id. at ¶¶ 7, 11(a). The relationship between the two families was harmonious, and

in many respects, they shared the property. Their children played basketball together using a

hoop that the Whites installed. Id. at ¶¶ 10(b), 11(b). The side doors from both homes led to the

driveway. And while the Grays generally maintained the grassy area, mowing the grass and

planting flowers, the Whites would mow the grass when the Grays were away and planted

coordinating flowers on the opposite side of the driveway. Id. at ¶¶ 11(c), (d). Occasionally, the

Whites would also park on the driveway. Id. at ¶ 12.

In 2009, the Grays sold 123 Elm Street to the plaintiffs. Id. at ¶ 8. The Normans were

aware when they purchased the property that the Whites owned the driveway and grassy strip in

dispute. Id. at ¶ 9. The Whites and Normans did not develop the same harmonious relationship,

and within one year, strained relations led the White family to assert ownership over their

property by excluding the plaintiffs from the disputed area. Id. at ¶ 14. In response, the

plaintiffs filed the present suit alleging that they are the lawful titleowners by adverse possession.


STANDARD OF REVIEW

Under 12(B)(6) of the Ohio Rules of Civil Procedure, the Court must presume that all

allegations within the complaint are true and must make all reasonable inferences in favor of the

nonmoving party. Peres v. Cleveland, 66 Ohio St.3d 397, 399, 613 N.E.2d 199, 200 (1993).

Additionally, it must appear beyond doubt that plaintiffs can prove no set of facts warranting

relief. O’Brien v. Univ. Cmty. Tenants Union, Inc., 42 Ohio St.2d 242, 327 N.E.2d 753 (1975).

LAW AND ARGUMENT

I. Plantiffs’ Own Allegations Defeat Their Adverse Possession Claim

Adverse possession requires the adverse possessor to satisfy four elements: (1) exclusive

possession of the land; (2) open and notorious use of the land; (3) adverse use of the land; and

(4) continuous use of the land. Grace v. Koch, 81 Ohio St.3d 577, 579, 692 N.E.2d 1009, 1011

(1998). The possessor must satisfy each element for at least twenty-one years. Id. Ohio courts

disfavor the doctrine because “[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 NE.2d 1012. After reviewing Ohio common law and surveying the doctrine in the fifty

states, Grace concluded that an adverse possessor must prove each element by clear and

convincing evidence. Id. If the adverse possessor sets forth a prima facie case that the use was

adverse, the owner may rebut adversity by a mere preponderance of the evidence that the adverse

possessor’s use was permissive. Eckman v. Ramunno, No. 09MA162, 2010 WL 3554278, at *5

(Ohio App. 7 Dist. Sept. 10, 2010) (“[P]ermissive is the opposite of the adversity element.”).

Plaintiffs here cannot establish adversity or exclusivity by clear and convincing evidence.

Even if plaintiffs could establish adversity, defendants granted plaintiffs’ predecessors-in-interest


express permission to use the driveway and implied permission to use the adjoining grassy strip.

Complaint at ¶¶ 7, 11(a). Because the Grays used the land permissively, the Normans could, at

most, establish adverse possession for ten months. Furthermore, the Normans undermine their

exclusivity claim by mentioning several ways in which the Whites also used the disputed

property. Id. at ¶¶ 11(b), 11(d), 12.

II. Permissive Use Defeats Adversity

Even assuming plaintiffs’ use to be sufficiently hostile, which defendants do not concede

and contest below, the Normans admit that the Whites permitted the Grays to use the disputed

driveway. Id. at ¶ 7. The Normans also admit that, at the time of the purchase, they knew the

property belonged to the Whites. Id. at ¶ 9. These facts are sufficient to establish express

permission to use the driveway and implied permission to use the grassy strip.

Although “indifference, lazineness, acquiescence, or neighborly accommodation” by an

owner does not give rise to an implication of permission, differentiating between these

insufficient grants of use and implied permission is difficult and must be done on a case-to-case

basis. Eckman, 2010 WL 3554278 at *7, citing Shell Oil Co. v. Deval Co., No. C-980783, C-

980809, 1999 WL 741814, at *5 (Ohio App. 1 Dist. Sept. 24, 1999). There is also a difference

between implied neighborly accommodation, which is not sufficient, and express neighborly

accommodation, which is sufficient. Id. “The ultimate issue, however, is whether the property

owner passively assented to an uninvited infringement of his or her rights-i.e., was slumbering-or

whether he or she in some manner formally consented to the use, granting the user leave or

license to come onto the property.” Shell, 1999 WL 741814 at *5.

At paragraph 11(a), the Normans admit in plain language that the Whites gave permission

to the Grays to use the driveway for ingress and egress. This is indisputably express permission.


Although the complaint does not mention express permission to use the grassy strip, the Court

would be hard-pressed to infer anything other than implied permission or, at minimum, express

neighborly accommodation. Paragraph 7 states, in essence, that the Whites, upon discovering

the true property line, actively assented (as opposed to “passively assented”) to the Grays’ use of

the driveway. It is unreasonable to imagine that the Whites, knowing the correct boundary line,

“passively assented” to the Grays’ use of the grassy strip while simultaneously actively assenting

to their use of the driveway. It seems patently ridiculous that the Whites would grant permission

to use the driveway while simultaneously denying use of the grassy strip. The alternative

interpretation would require the Court to believe that the Whites intended for the Grays to leap

over the grassy strip or walk around it to get to their house.

Furthermore, the Whites planted matching flowers along the eastern side of the driveway

and mowed the grassy strip on the western side of the driveway whenever the Normans and/or

Grays were away. Id. at ¶¶ 11(c), 11(d). Planting matching flowers indicates approval, not mere

acquiescence. Additionally, keeping the driveway and adjoining strip attractive implies an

ownership interest that is inconsistent with acquiescence or passive acceptance. Combined with

the Normans’ awareness that the Whites owned the land, the only reasonable interpretation is

that the Whites impliedly permitted use of the grassy strip.

The Shell Court rejected Shell’s claim that the defendant merely acquiesced, or passively

assented, to Shell grading part of his property. Shell, 1999 WL 741814 at *9. The Court held

that the use was permissive. When Shell requested permission to do the grading, the

predecessor-in-interest responded, “sure, it’s okay.” Id. at *1. His rationale was that this was

“just a neighborly temporary kind of thing.” Id. at *2. Likewise, in Eckman v. Ramunno, the

Court overturned a magistrate’s ruling that Mr. Ramunno had merely acquiesced to his


neighbor’s encroachment upon his property. Eckman, 2010 WL 3554278 at *7. From the

neighbor’s affidavit: “We talked over the situation and I offered to pay for the property, but Mr.

Ramunno said it wasn't necessary and it wasn't a problem and that was the way the matter was

left.” Id. at *2.

As these two cases demonstrate, the Court will find permission in even casual

conversation between neighbors. A grant of permission sufficient to defeat adversity need not

adhere to the form of an oral agreement in a typical contract. Here, the Whites and Grays

coexisted harmoniously for the twenty years prior to the Normans arrival. The Whites did not

draft a formal contract, but they did engage in active dialogue with the Grays about the property

line. This is not one of those cases where the neighbor intrudes upon the owner’s property, and

the owner idly allows the intrusion. The above evidence of active assent is sufficient for the

Court to find implied permission.

The only way the Normans can satisfy the twenty-one year statutory requirement is by

tacking on the Grays’ period of occupancy. Permissive use, however, does not ripen into adverse

use through the mere passage of time. Brandt v. Daugstrup, No. 75065, 1999 WL 1044499, at

*7 (Ohio App. 8 Dist. Nov. 18, 1999). Permissive use may expire by its terms, be revoked, or “if

a new owner neither seeks nor obtains permission, adversity [will be] triggered.” Id. Because

the period between 1979 and 2009 was permissive, adversity was only triggered when the

Normans arrived. The Normans, therefore, cannot tack on the prior twenty years of permissive

use to reach the twenty-one year statutory requirement.

III. Plaintiffs’ Use Was Not Sufficiently Adverse to Put the Defendants on Notice

The Ohio Supreme Court recently characterized the adversity element as “the visible and

adverse possession with an [objective] intent to possess . . . such as to give notice to the real


owner of the extent of the adverse claim.” Evanich v. Bridge, 119 Ohio St.3d 260, 261, 893

N.E.2d 481, 484 (2008) (citation omitted). Grace used more colorful language, consistent with

the doctrine’s disfavor, to describe the notice requirement: [T]he adverse possessor “must unfurl

his flag on the land, and keep it flying so that the owner may see, if he will, that an enemy has

invaded his dominions and planted his standard of conquest.” Grace, at 581, 692 N.E.2d 1009

(citation omitted).

This Court must focus on to what degree the Grays’ use was inapposite to the Whites’

property rights. Permanent objects, such as buildings and trees, and objects designed to exclude,

such as a fence or hedge, strongly indicate hostile use. Easily removable objects, however, such

as flowers, shrubs and vehicles, do not give adequate notice of intent to dispossess. The Grays’

use falls into this latter category. Using the driveway to park and play basketball and

maintaining the grassy strip are uses that lack permanency and do not exclude.

For comparison, in Grace the adverse possessor mowed grass, parked vehicles, stored

firewood and oil drums, and constructed a swing set upon the true owner’s property. Id. at 582,

692 N.E.2d 1013. Still, the Court concluded that this use was not sufficiently adverse to put the

owner on notice. And in Blue v. Van Ness, No. S-09-009, 2009 WL 3402332 (Ohio App. 6 Dist.

Oct. 23, 2009), the adverse possessor stored construction materials and firewood on the property,

graded and seeded the land, mowed the grass, parked vehicles on the property and allowed their

children to play on the disputed property. Again, the Court held that this use was not sufficiently

adverse. In Crown Credit Co. v. Bushman, 170 Ohio App.3d 807, 869 N.E.2d 83 (Mar., 19

2007), Bushman mowed, planted a tree, tended a small garden and even built a grape arbor upon

the disputed land. The Court held this use was still not sufficiently adverse. As a benchmark for

what is adverse, Crown Credit compared Bushman’s use to the adverse possessor’s use in


Kaufman v. Geisken Enters., No. 12-02-04, 2003 WL 832678, (Ohio App. 3 Dist. Mar. 7, 2003).

Crown Credit, at 821, 869 N.E.2d 94. In Kaufman, the adverse possessor used the land for

recreation (including racing go-carts), planted multiple trees, stored debris and firewood, burned

barrels, cultivated asparagus and parked upon the land. Id.

The Normans’ use of the disputed strip, which consisted of mere maintenance and use of

the driveway, was surely less hostile than the use in Grace, Blue v. Van Ness and Crown Credit.

In fact, general maintenance is generally insufficiently adverse as a matter of law. Murphy v.

Cromwell, No. CT2004-0003, 2004 WL 2676311, at *4 (Ohio App. 5 Dist. Nov. 19, 2004)

(“Mere maintenance of land, such as mowing grass, cutting weeds, planting a few seedlings, and

minor landscaping, is generally not sufficient to constitute adverse possession.”); Crown Credit,

at 821, 869 N.E.2d 94 (“[M]erely mowing grass, regardless of the intent of the claimant, is

insufficient as a matter of law to amount to the required possession.”).

Cuyahoga County jurisprudence does contain one anomalous case in this area. In 1989,

the Court of Appeals held that “planting trees, mowing grass and generally maintaining an area

of land containing trees to keep it attractive are acts sufficient[ly adverse].” Flask v. Kurinsky,

No. 55270, 1989 WL 43580, at *2 (Ohio App. 8 Dist. Apr. 20, 1989). Flask is distinguishable

on the grounds that the adverse possessor there planted large-variety trees on the strip twenty-

seven years before trial, an act that surely should have given the owner sufficient notice. Id.

Furthermore, no Eighth District court has cited this case’s expansive interpretation of adverse; no

appellate level court has cited this case in fifteen years; and only four courts have ever cited it.

In light of the above case law, the Grays’ use was neither sufficiently adverse as a matter

of law, nor sufficient to put the Whites on notice that their lands had been invaded. This is


especially true considering the harmonious relationship between the Whites and the Grays. The

Normans, therefore, cannot use the period between 1979 and 2009 to meet their adversity claim.

IV. Plaintiffs Essentially Concede that They Cannot Meet the Element of Exclusive Use

There are five reasons why plaintiffs’ cannot establish exclusivity: (1) the Whites’

children played basketball on the driveway using the basketball hoop that they installed; (2) the

Whites retained access to the driveway by their side door; (3) the Whites mowed the grassy strip;

(4) the Whites occasionally parked on the driveway; and (5) neither the Grays nor the Normans

ever attempted to exclude the Whites from the property. Complaint at ¶¶ 11(b), 11(d), 12.

“To be exclusive . . . an adverse possessor’s use of property must be exclusive of the true

owner entering onto the land and asserting . . . by word, or act, any right of ownership or

possession.” Franklin v. Massillion Homes II, L.L.C., 184 Ohio App 3d. 455, 461, 921 N.E.2d

314, 318 (2009) (citation omitted). The Court, however, should still bear in mind that “the

landowner cannot be faulted for failing to assert his or her rights” if use that began as permissive

never underwent a “metamorphosis” into adverse use. Shell, 1999 WL 741814 at *6.

In contrast to the Normans and/or Grays, who never asserted ownership or possession by

word, the Whites at least asserted ownership by word when they discovered the true property

line. Complaint at ¶ 11(a). Furthermore, while the Normans assert ownership exclusively by

acts, the Whites may assert ownership by most of the very same acts. By mowing the grass and

using the driveway for recreation without permission, the Whites asserted right of possession.

Ohio courts require only minimal use by the true owner to defeat exclusivity, and courts

place significant weight on whether or not an adverse possessor sought to exclude the true

owner. See Murphy v. Cromwell (emphasizing testimony in which the adverse possessors

admitted that they never prevented the owner from walking on the land). See also Cohen v.


Coronado Beach Ass’n., No. 75714, 2000 WL 146553, (Ohio App. 8 Dist. Feb. 10, 2000)

(mentioning several times testimony about whether or not Ms. Cohen attempted to keep people

from using the beach). In Crown Credit, the Court held that a mere survey with intent to possess

was sufficient to defeat exclusivity. Id. at 818, 869 N.E.2d 91. And especially relevant to this

case, Swinson v. Mengerink, No. 15-98-10, 1998 WL 833706, at *4 (Ohio App. 3 Dist. Dec. 03,

1998), held that because the true owner mowed “from time to time” and because the adverse user

never sought to keep the owner off the strip, the adverse possessor failed to prove exclusivity.

The case before this Court is atypical. Not only have the plaintiffs and/or their

predecessors-in-interest made no attempt to keep the owners off the land, the best description for

the relationship between the owners and the plaintiffs’ predecessors-in-interest is harmonious

with agreement to share the disputed property. Just as permissive is the opposite of adverse,

shared is surely the opposite of exclusive.

V. Conclusion

For the above reasons, defendants respectfully request that the Honorable Court dismiss

plaintiffs’ complaint for failure to state any claim upon which relief can be granted.

Christopher Sleeper - Writing Sample Adverse Possession

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