The Supreme Court of Ohio recently ruled in NC Ents., L.L.C. v. Norfolk & W. Ry. Co., Slip Opinion No. 2026-Ohio-1429 (the “NC-Norfolk Case”) that Appellee’s lawn maintenance on Appellant’s parcels was not sufficiently open and notorious to have put appellant on notice that appellee was adversely possessing its property. The Court’s ruling was a 5-2 decision.
What is Adverse Possession?
The principle of adverse possession enables someone who actually possesses the land of another for a certain period of time to claim legal title to that land without ever having to pay for it. While “actual possession may be 9/10 of the law”, to get to “10/10”, or legal title by adverse possession, a “Quiet Title” action must be filed wherein the elements of adverse possession must be proven. Failure to prove any of the elements by clear and convincing evidence results in failure to acquire title of the property.
The elements of this claim in Ohio (as well as most other states) are:
- Exclusive Possession: In Ohio, the use of the property does not have to be exclusive of all individuals. Rather, “it must be exclusive of the true owner (and other 3rd parties) entering onto the land and asserting his right to possession.”
- Open and Notorious: To be “open,” the use of the disputed property must be without attempted concealment. To be “notorious,” there must be conduct sufficient to put a person of ordinary prudence on notice of the fact that the land in question is held by the claimant (vs. the titled owner) as his/her own.
- Continuous: To establish the necessary twenty-one year period, several successive periods of possession by different persons may be “tacked” or added to each other, provided that the successive occupants are “in privity” (connected by contract, estate or blood).
- Hostile/Adverse: The Ohio Supreme Court has stated that any use of the land inconsistent with the rights of the titleholder is adverse or hostile. “There must have been an intention on the part of the person in possession to claim title…; but only intent to occupy and treat the property as one’s own, not the intent to take the property of another away.”
Facts of the NC-Norfolk Case
This case involved a dispute over ownership of two long and narrow strips of land totaling approximately 1.5 acres. The land strips abut Norfolk’s 34-acre parcel, and also abut property owned by NC in Tallmadge, Ohio.
Approximately four months after NC purchased its property in 1997 (and through 2021), it started regular and significant landscape maintenance on its property and the two parcels in question, including: mowing; weeding; fertilizing; trimming bushes/shrubs/trees; mulching and planting; and providing spring and winter cleanups. Between 2000 and 2003, NC erected a six-foot chain-link fence with barbed wire and in 2011 installed drainage pipes to alleviate flooding on its property and the two subject parcels. NC always believed that it owned the subject parcels, at least until 2021 when Norfolk put what it believed to be its property up for sale.
Norfolk always paid property taxes on the two parcels, listed the parcels for sale at various times between 2003 and 2020 and always believed it owned the parcels in question.
In 2020, counsel for NC notified Norfolk that NC was asserting an adverse possession claim for the two parcels, and approximately 2 weeks after receipt of that notice, Norfolk replied, refuting NC’s claim. About one year later, NC filed a court action seeking a declaration that NC had acquired legal ownership of the disputed land through adverse possession.
Case History
In 2023, the Summit County Court of Common Pleas granted NC’s adverse possession claim concluding that NC “had proven by clear and convincing evidence, exclusive possession and open, notorious, continuous, and adverse use of the parcels at issue for a period of at least 21 years.” The 9th District Court of Appeals affirmed the lower court’s ruling and concluded that landscaping and maintenance may be combined with other acts to establish adverse possession. Norfolk then appealed to the Ohio Supreme Court who overruled the Ninth District Court of Appeals on April 24, 2026.
The Ohio Supreme Court’s Reasoning/Opinion
The Ohio Supreme Court first cited 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 in Ohio, there must be clear and convincing evidence that the use, for 21 years or more must be Open, Continuous, Exclusive, Adverse and Notorious.
The Court then established an “adverse possession start date” of July 22, 1999 for this case by counting backwards 21 years from the date Norfolk refuted NC’s claim. Next, citing a 2008 Ohio Supreme Court case (Evanich v. Bridge) the Court agreed with the lower courts that NC Enterprises need not have intended to take the two parcels but it must have intended to occupy and treat them as its own. The Supreme Court’s agreement with the lower courts, however, only went as far as confirming the above-described “adverse possession math” and the intent of NC.
When it became time for the Supreme Court to evaluate whether or not there was clear and convincing evidence of each element of adverse possession, however, it simply did not “go there.” The Court concluded that a thorough analysis of each element would be irrelevant, as “NC Enterprises failed to establish that it…[possessed the property] openly and notoriously for 21 years.”
Evaluating prior case law, the Court proclaimed that, “ordinary lawn-maintenance activities, such as mowing grass and trimming bushes, are simply not obvious enough to satisfy the open and notorious elements of an adverse-possession claim.” The Court did admit that there was no question that NC’s acts such as erecting fences and installing drainage pipes are characteristic of use and possession that is open and notorious. However, while the lawn maintenance in NC-Norfolk continued for more than 21 years, it had only been ten years since NC’s drainage work occurred.
What Is the Moral of This Story?
Understand that in Ohio (and other jurisdictions), provided that all the requisite conditions are met, an encroachment on your land could result in the transferring of title to an adverse possessor. For this reason, it is advisable to survey your property and familiarize yourself with its correct boundaries and limits. This way you will know if someone else has wrongfully “set up camp” on your land. If they have, it is important that you do not “sleep on your rights” since you could lose ownership of the property. Initially, a written demand is in order, to the effect that the encroacher immediately leave your premises and refrain from treating the disputed property as his or her own. If this does not work, you might have to initiate a lawsuit for trespass in order to assert your rights and minimize the possibility of your neighbor getting title to your land through adverse possession.
To discuss further, contact KJK Real Estate attorneys Stephen Richman (SDR@kjk.com) or Matthew Viola (MTV@kjk.com).