Real Property – Adverse Possession essays

Mildred owns property in Cleveland, Ohio. While doing estate planning, Mildred had a survey done on her property and found that her neighbor, Cliff, had a picket fence that was 3 feet on over onto Mildred's property. Mildred has her original deed executed over 40 years ago, showing the right and title to that 3 feet that the fence encroaches on.
Neither Cliff nor Mildred recall when the fence was built nor can they remember what was there prior to the fence.Cliff claims the right to property by adverse possession.
The issue in this case is who has the burden of proof regarding the adverse possession of this property and who will prevail in the event of litigation.
The elements of adverse possession, as stated by Busziewicz v. Damion, 140 Ohio App. 3d 126, 130 (Ohio Ct. App., Cuyahoga County 2000), Jacks v. Brewington, 177 Ohio App. 3d 844, 850 (Ohio Ct. App., Champaign County 2008), and BEBOUT v. PEFFERS, 1986 Ohio App. LEXIS 8030 (Ohio Ct. App., Knox County Aug. 18, 1986), are:
1. Possessor must have entered the property and have had exclusive use and possession of the property;
2. Possession must have been open and notorious;
3. Possession must be adverse to the rightful owner and under a claim of right; and,
4. Possession must be continuous for a period of 21 years.
In Bebout, the Court found that party claiming the adverse possession has all the burden of proof, stating: "The law presumes possession of land is under the regular title. In fact, the true owner has the benefit of all reasonable presumptions.Demmitt v. McMillan (1984), 16 Ohio App.3d 138; 2 O.Jur.3d 630-31, Adverse Possession and Prescription, §112. Therefore, the party claiming property by adverse possession has the burden of proving all the elements of adverse possessionthis court, in Richards v. Hostetler, supra, has held that the elements of adverse possession must be proved by the claimant b

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