Acquiring title by acquiescence, not adverse possession

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Acquiring title by acquiescence, not adverse possession

A recent decision by an Ohio court provides a nice illustration of the difference between acquiring title by the little known method of acquiescence, compared to adverse possession in Golubski v. United States Plastic Equipment, LLC, 2015-Ohio-4239.

United States Plastic Equipment LLC purchased the property immediately adjacent to Robert Golubskis property at a foreclosure sale and tried to enforce the actual boundaries of those adjacent properties. The problem for U.S. Plastic is that Golubski lived in his property since 1976, and he had been using a boundary that was 15 feet south of the actual boundary of his property.

Over that course of time, Golubski maintained that 15 foot strip as if it was part of his yard. He planted bushes to note that he believed that was his boundary. He discussed with his neighbors that the 15 foot strip was his property. In 2000, Golubski had his land surveyed, at which time he learned that he did not actually hold title to the 15 foot strip. Nevertheless, Golubski continued to use it and maintain the space just as he had always done.

The neighbors passed away, and their daughter took title to the adjacent property. The daughter never took issue with Golubskis use of the 15-foot strip, and in fact, thought it was Golubskis based upon conduct of her parents and Golubski related to that spot of property. The daughter lost title to that property through foreclosure, it was acquired by U.S. Plastic, and things changed.

S. Plastic purchased the property at the foreclosure sale

After U.S. Plastic hired a landscaping company to perform “clean up” that removed the bushes on what Golubski thought was the boundary, Golubski filed suit to establish title by adverse possession or acquiescence. Golubski prevailed at trial, and U.S. Plastic appealed to the Eleventh District Court of Appeals.

In its decision, the court of appeals first noted that acquiring title by adverse possession requires proving exclusive possession that is open, notorious, continuous, and adverse for 21 years. Permissive use completely thwarts adverse possession.

The court found that Golubskis use was permissive, and that it included only minor landscaping, mowing, and maintenance of a garden, none of which rose to the level of being adverse under Ohio law

However, that testimony proved beneficial to support Golubskis claim to title by acquiescence. Title may be acquired by acquiescence when “adjoining land owners occupy their properties up to a certain line and mutually acknowledge and treat that boundary as though it is the actual boundary separating their properties,” the court said. A purchaser may be bound to a recognized boundary through acquiescence.

This case made an even better fact pattern for acquiescence because U.S. Plastic had owned the property on the other side of Golubskis property since 1996, and the president and sole officer of U.S. Plastic discussed with Golubski what Golubski thought was the boundary and had similar discussions with the neighbors daughter before U.

Thus, the court concluded that U.S. Plastic was actually aware of the recognized boundary line. The court of appeals sent the case back to the trial court to establish the definitive boundary line based upon acquiescence. There is a great deal of case law in Ohio concerning acquiring title by adverse possession, but very little dealing with title by acquiescence.

Both methods of acquiring title are unusual and challenging. That is because they require courts to stray from what title records recognize. In the right cases with the right facts, courts may recognize that one of these exceptional doctrines applies.

Michael J. Sikora III is the managing officer of Mentor-based Sikora Law LLC and the president of Omni Title LLC. Sikora is president-elect and education chair of the NAIOP Northern Ohio trade group.

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