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had never been revoked.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.
Comment:
Constructive
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