In Maryland, Adverse Possession is the legal concept by which a person can come to own real estate by taking possession of it and holding it for a certain period of years. The land must be held for a period of 20 years — many other states require shorter periods. Under Maryland law adverse possession means, ” the person claiming adverse possession must prove actual, open, notorious and visible, exclusive, hostile and continuous possession of the claimed property for at least 20 years.” The classic case of adverse possession is, as between two neighbors, one fences in or builds on a part of the property that belongs to the other. After 20 years, the property is deemed owned by the person that fenced it in or built on it. The relationship between the parties may be friendly, but the acts of one must clearly against the legal interests of the other.
Most cases where adverse possession becomes an issue are far more complicated, however. When trying to prove adverse possession, it is common that there have been multiple owners during the period and it can also be difficult to know who first built a structure or when it was built. Many times a fence has been built, rebuilt and moved over the course of time. Other times one party has used and maintained the property, by mowing the grass, raking leaves, etc., but has not fenced it in. All of these sorts of issues present opportunities for counsel to dig up and present helpful facts from the past. The burden of proof will be on the Plaintiff to show possession for twenty years — they can also “tack on” years in which their predecessor owners used and maintained the property. The nature of possession that needs to be shown may be different, depending on what kind of property is at issue: “acts sufficient to demonstrate possession of wild, undeveloped forest may fall short of the activity needed to establish possession of developed property.”
If the Plaintiff can demonstrate exclusive possession for 20 years, the burden shifts to the Defendant (the person that has a deed for the property) to show that the use was not adverse. There are two primary ways to show this: 1) show that the possession was with permission from the landowner; or 2) show that the deeded owners of the land took back possession by acts at least as dramatic as those that were used to obtain possession by the adverse possession claimant. The “mere act of going upon the land is not enough. The owner must assert his claim to the land or perform some act that would reinstate him in possession, before he can regain what he has lost.”
All of these issues require historical evidence to be amassed and presented; historical imagery to reviewed; and more than likely “I remember when” testimony from people who have been around for 20 years or more. It is also likely to require the expertise of a good land surveyor.
Dirk Schwenk is real estate attorney from Annapolis, Maryland. He can be reached at dschwenk@baylawllc.com.