Lance R. Pomerantz
Attorney at Law

Land     Title     Law

“Constructive Notice”  The  Newsletter

Excerpted from the April 10, 2018 mailing of "Constructive Notice":

Tacking of Permissive Use

Tacking is frequently invoked by those claiming title by adverse possession. In a recent Ohio case, tacking was suggested as a defense to an adverse possession claim.

In Wischt v.The Heirs of Mourer, 2017 Ohio 8236 (2017), the Fifth District Court of Appeals hinted that permission granted to an ancestor between forty and sixty years earlier could be imputed to successive generations of the same family who continued to occupy the parcel.

The uncontested testimony of Wischt’s grantor established that he had given permission to the Mourers’ parents sometime between the 1950’s and 1975, and it had never been revoked. He also testified he had no relationship with the Mourer Heirs. The Mourer Heirs argued the original grantor “had not been on or used the property since the 1950's, no additional consent was given since the 1950's and what began as consensual use developed into an adverse use.” They encouraged the Court to adopt the reasoning of Ohio’s Seventh District Court of Appeals that when

“the invited occupier leaves and a wholly new occupier begins possession, the original permissive use is not automatically extended. Rather, the landowner must renew his permission to subsequent occupiers in order to avoid adverse possession and to maintain the express permission.”

The Fifth District declined to embrace the reasoning of its sister Court, but when on to explain that even the Seventh District rule would be inapplicable in Wischt. Under that rule, “the relevant inquiry is the permission as it relates to the occupier of the property, not the owner of the property.” Relying on a traditional tacking case, "when calculating years of continuous adverse use, continuity is not broken by a change in ownership between family members," the Wischt court applied the same reasoning to continuity of permissive use.


Constructive Notice subscribers are never shy about expressing their opinions. We’re interested in your take on this issue. Click here to send in your thoughts. Should sauce for the goose be sauce for the gander?