In the case Korenko v. Kellys Island Park Development Co., the developer, long defunct at the time of this case, held title to a long-vacant, triangular lot. The Korenko family, who owned a home across the street, claimed that when they had purchased their property in 1978, their real estate salesperson verbally represented to them that they also owned the vacant lot.
(Notably, the salesperson passed away years prior to this case, and the Korenko family never held written title to the property.)
Over the years, on occasion, the Korenko family’s use of the vacant triangular lot was limited to parking a boat on the property at some point in the 1980s, playing fetch with their dog there on an occasional basis, and planting some flowers on the lot at some time in the preceding decades.
The Korenkos filed suit to quiet title from the development company, alleging that they had acquired title through adverse possession. Rather than the development company contesting the Korenkos’ claims, the owners of the lots immediately adjacent to the vacant lot did. The three neighbors of the lots immediately neighboring the vacant lot filed claims to intervene in the action.
The trial court rejected their claims, but the neighbors were eventually permitted to intervene in the Korenkos’ adverse possession suit by the Court of Appeals.
Once they were properly made parties to the matter, the three groups of neighbors immediately adjacent to the vacant lot provided extensive evidence, including photos, affidavits and depositions showing that for more than 21 years they had used and maintained the vacant lot in a manner fulfilling the requirements for acquiring title to the lot through adverse possession.
The neighbors had cleared paths across the lot, regularly used the paths to get to the street on the other side, rode their bikes and motorcycles across it, and gathered firewood from the lot.
These families did nothing to conceal their behavior and, the trial court found, treated the respective portions of the property adjacent to their own as though it were their own, in a manner that was "open, notorious, continuous and adverse" for the requisite 21 years.
Accordingly, the trial court granted summary judgment in favor of each of these three families, and against Korenko.
The Korenko family appealed, on grounds that the trial court (1) improperly granted summary judgment in favor of the neighbors; (2) improperly found that the neighbors deserved title through adverse possession; (3) improperly denied the Korenkos’ motion to amend their complaint and; (4) improperly vacated a 2004 entry of default judgment against one of the neighbors (which was entered prior to the appellate court’s earlier finding that the neighbors had the right to intervene in the Korenkos’ action). …CONTINUED
The Court of Appeals rejected the Korenkos’ arguments, one by one. First, the court pointed out, the trial court had applied the correct standard in deciding to grant the neighbors summary judgment, as evidenced by the trial court’s express finding that there was no genuine issue of material fact.
The overwhelming evidence showed that the neighbors’ behavior regarding the property met the standards of "open, notorious, continuous and adverse" possession. The evidence showed just as strongly that the Korenko family’s behavior did not meet the elements of an adverse possession claim.
Also, the court noted, it appeared that the Korenkos’ goal in seeking title through adverse possession was to block the neighbors from using the property as they had for decades, to access the road on the other side.
(This contention seems somewhat bizarre, given the cited history of the neighbors’ use, the fact that the three neighbors lived immediately adjacent to the three sides of the lot, and the fact that the Korenkos lived across the street!)
Accordingly, there was no genuine issue of material fact, and, the Court of Appeals found, the trial court’s grant of summary judgment was valid.
On the Korenkos’ next argument, the Court of Appeals pointed out that four years had elapsed between the time the Korenkos filed their complaint and the time they moved to amend it. As a result, the Court of Appeals declared that the trial court’s refusal of the motion could not be deemed arbitrary or unreasonable, and it was upheld.
Finally, the trial court was effectively mandated, by law, to vacate its 2004 default judgment against the neighbors by virtue of the appellate court’s 2007 ruling that the neighbors had the right to intervene in the Korenkos’ case.
The Court of Appeals upheld the trial court’s ruling that the neighbors were each entitled to title on the portion of the vacant lot immediately adjacent to their own lots, and that the Korenkos were not entitled to title over any portion of the property.
Tara-Nicholle Nelson is author of "The Savvy Woman’s Homebuying Handbook" and "Trillion Dollar Women: Use Your Power to Make Buying and Remodeling Decisions." Tara is also the Consumer Ambassador and Educator for real estate listings search site Trulia.com. Ask her a real estate question online or visit her website, www.rethinkrealestate.com.
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