Sales Contract Does Not Negate Adverse Possession

In a recent Ohio appellate court decision, the Appellate Court overturned a trial court decision that had determined that the existence of a sales contract negated the adversity required to establish ownership by adverse possession.  See Hampton v. Lively, 2020-Ohio-4713.

In Hampton, suit was brought by the Estate of Carol Jean Hampton (the “Estate”) against Chad Lively (“Lively”), who was the record owner of a home, alleging that the Estate had obtained legal ownership of the property by adverse possession.  Lively acquired title to the property in 2016, through the estates of his deceased grandparents – Thomas and Loise Lively (“Lively Family”) – who had acquired title to the property in 1960 and remained the record owners.  It is undisputed, however, that Carol Jean Hampton (“Hampton”), her husband, and three sons all lived at the home from 1980 until 2012.

Ultimately, the trial court determined that the plaintiff  proved “exclusive possession and open, notorious, and continuous use of the property for a 21-year period.”  However, the trial court concluded that Hampton did not prove that the possession was adverse and therefore could not acquire title to the property by adverse possession.  The Estate then filed an appeal contending that the trial court erred by misapplying the meaning of “adverse,” as it relates to an adverse possession claim.

The Court noted that when “a buyer takes possession of property after paying the purchase price, the buyer manifests an intent to treat the property as his or her own because the buyer’s performance triggers the seller’s duty to convey legal title to the buyer.”   As such, because there was evidence that he accepted the check as payment for the property in 1980, as well as other evidence of a sale, Lively should have conveyed legal title to Hampton.  Having believed that Hampton had acquired title upon the purchase of the property, the Court of Appeals found that regardless of whether there was a valid deed of conveyance, Hampton adversely possessed the property by her actions with respect to the property for more than 21 years.

Accordingly, the Appellate Court concluded that the Estate established all of the elements of adverse possession by clear and convincing evidence, reversed the judgment of the trial court, and remanded the case to the trial court for further proceedings.

To review the Hampton Decision, click here.

Real Property Tax Values May Be Reduced Due to Covid

Ohio Senate Bill 57 passed the House on March 25, 2021.  If and when signed by Governor DeWine, it will allow property owners to seek a reduction in their real property taxable value due to COVID related circumstances that existed as of October 1, 2020.  That law requires the property owner to plead those circumstances with particularity in the tax reduction complaint.  To review Senate Bill 57, click here.

Greatest Change to Ohio Title Law in Decades

Greatest Change to Ohio Title Law in Decades

Michael J. Sikora III spearheads first change to title cure law in 56 years

Back in 2010, Michael J. Sikora III began spearheading the change to Ohio’s title curative law when he became president of the Ohio Land Title Association. As managing partner of Sikora Law LLC (a law firm focused on real estate) and president of Omni Title LLC (a commercial title agency), he heard multiple clients raise concerns that they faced title issues in Ohio that weren’t issues in other states.

After more than 50 years of stagnation, Ohio’s title curative law was completely overhauled in 2017 when Senate Bill 257 went into effect. This change was seven years in the making, and it marks the most significant change to Ohio title law in decades.

“Anyone who has a real estate deal may be affected, especially if there are any issues with the documents on that deal – which there just are sometimes, but there is no way of knowing without reviewing the title evidence,” Sikora says. “Most significantly, it’s going to affect real estate developers and owners, lenders and title insurance companies, because the more volume and magnitude of real estate deals that you have, the more likely and more significantly you will be affected by this change in the law.”

Sikora drafted the new statute by taking the best attributes of other states’ curative laws. He gained the backing of the Ohio Land Title Association in 2011. Then he took the matter to the Ohio State Bar Association, first getting its Real Property Law Section Council on-board, and then convincing the Ohio State Bar Association as a whole to take the lead advocacy role on the issue. The Ohio Association of Realtors also agreed to support the initiative.

Sikora spent hundreds of hours advancing the bill from inception to passage. He presented expert testimony on behalf of the Ohio State Bar Association before the Ohio Senate and the Ohio House Committees. This is the second Ohio real property statute that Sikora has drafted and served as the Bar Association’s expert witness.

Because of his instrumental role overhauling Ohio’s title curative law, Sikora says his firms are uniquely positioned with the expertise to help real estate owners, developers, brokers, lenders and title insurance companies leverage the new statute to close deals and minimize post-transaction risk.

Omni Title LLC is an independent title agency that serves commercial real estate clients throughout Ohio from offices in Cleveland and Columbus. Omni’s experienced title professionals work closely with developers, transactional attorneys, commercial brokers and lenders to mitigate and eliminate risk through a full range of title and closing services. With extensive title law expertise, talent and technology in place, Omni is structured to complete commercial real estate transactions efficiently, while providing exceptional client service. Since 2004, Omni’s team has resolved thousands of title issues. To learn more, visit www.omnititlellc.com.

Extinguishing Old Interests in 2021

More and more transactions that we’re handling all over Ohio involve properties that have been owned by an entity or by a family for decades.  A good portion of those transactions have long-standing title issues and/or survey issues that need to be cleaned up prior to closing.

In a recent Supreme Court of Ohio Decision involving surface owners and mineral interest owners, the Supreme Court of Ohio found both the Marketable Title Act and Dormant Minerals Act are applicable to severed mineral interests.  See West v. Bode, 2020-Ohio-5473.

The Supreme Court of Ohio has once again provided further clarity as to mineral interests with respect to the Marketable Title Act and Dormant Minerals Act.  Simply put, the Marketable Title Act generally extinguishes property interests prior to the root of title (generally the arms-length conveyance that is 40 or more years before the current exam).   R.C. 5301.47.  The Dormant Minerals Act, on the other hand, operates to abandon a mineral interest during a 20 year period, so long as certain other savings events have not occurred during that period.  R.C. 5301.56.

In West,  there was a 1902 conveyance of a portion of the mineral interests made to C.J Bode and George T. Nalley.  Subsequently, the Wests obtained title to the surface rights in 2002 through a series of conveyances, and then filed a complaint under the Marketable Title Act against the unknown heirs and successors of Bode and Nalley.  The successors-in-interest of Nalley intervened in the case and filed a counterclaim against the surface owners under the Dormant Minerals Act.  The trial court ruled in favor of the successors of Nalley under the Dormant Minerals Act.  On appeal, the Seventh District Court of Appeals reversed the trial court’s ruling and remanded the case for determination under Ohio’s Marketable Title Act.

The Supreme Court of Ohio extensively evaluated both of the Marketable Title Act and the Dormant Minerals Act, including legislative history and historical and recent cases interpreting both.  Ultimately, the Supreme Court of Ohio affirmed the Decision of the Seventh District Court of Appeals and held that mineral interests are simultaneously subject to both the Marketable Title Act and the Dormant Minerals Act.

To review the West case, click here.

American Land Title Association’s Title News Features Sikora Law’s Appellate Victory

The American Land Title Association’s Title News Online featured Sikora Law’s 32nd appellate victory (Clinton v. Home Investment Fund V, LP, 2020-Ohio-4555 ) on the subject of lis pendens.   Check out that article on ALTA’s website by clicking here.