ADVERSE POSSESSION

            Adverse possession seems to be a particularly unusual legal right. In simple terms, it provides that a person who does not have legal title to a property can obtain it under specified circumstances. The legal requirements to obtain adverse possession include: (1) actual or constructive possession of the property, (2) under color of title or claim of right, and for 20 years uninterrupted.

            Actual possession means just what it sounds like - that the person claiming adverse possession is in actual peaceable possession of the property. Constructive possession means possession under "color of title" or "claim of right." Color of title applies when someone erroneously thought they owned the property but did not legally, perhaps because of an improperly worded or recorded deed. Claim of right applies, for example, when a person makes a legal claim that they own the property by reason of a predecessor's adverse possession. Maryland cases have used the terms "hostile," "actual," "open," and "notorious" to explain the type of ownership required for adverse possession. This does not necessarily mean asserting ownership in the ordinary meaning of "hostile," which brings up ideas of malice or ill will. Instead, the goal is that the asserted ownership is made clear, thereby giving notice to an actual or purported owner that possession and ownership is asserted. Thus, property owners are admonished not to "sleep on their rights."

            The 20 year requirement supports the public policy of promoting land development and rewarding productive use and ownership of property. It also aims to deter an owner's neglect of his or her property rights.

            Under what circumstances might an adverse possession claim arise? There are many possible scenarios. A common one is a boundary dispute, perhaps between neighbors regarding a strip of land between properties. Another could be when someone abandoned a property and an adverse possessor stakes a claim and meets the legal requirements above.  Or maybe an owner has a defective deed, and never legally owned the area in question. Yet another scenario could be where there is an "easement," or allowed use of part of a property without a transfer of ownership, such as a shared driveway or road that a person is able to use to access their property.

            How and when does an adverse possession claim come before a court? A person who is not in possession of property, but who claims title, may bring an action against the person in possession of the property. This is called an action to  "quiet title." The legal standard or "burden of proof" falls on the adverse possessor. Thereafter, the burden of proof shifts to the who claims to be the owner.

            The court, hearing an adverse possession claim, will decide who has legal ownership of the property.

            Adverse possession claims are, by nature, complicated. They are very fact specific. Each element of an adverse possession or claim of rightful ownership must be proven.  Adverse possession cases may require experts, factual witnesses, surveyors, title examiners, and others to support a claim or defense to a claim. It is advisable to retain an attorney regardless of what side you are on should one of these cases arise. It is also important, if you believe that someone may be adversely possessing your land, that you take action immediately to remove the possibility that a claim can be made. Katherine Taylor and Andrea LeWinter have represented many clients on both sides of adverse possession claims.