Adverse possession is a legal rule that allows a person to claim ownership of land under certain conditions, even if the land is owned by someone else. To acquire land through adverse possession, the claimant must occupy the property openly, continuously, exclusively, and without the owner’s permission for a statutory period. In Maryland, the period required for adverse possession is 20 years. The logic behind this rule is that it encourages the productive use of land and resolve disputes over property boundaries. Once all conditions are met, the claimant may seek legal title to the property.

Our Maryland real estate lawyers handle adverse possession cases on a regular basis. I have personally filed and won numerous adverse possession cases on behalf of claimants. I have also defended a few adverse possession cases. In addition to the adverse possession cases that I actually take on, I get 1 or 2 people every month who reach out to me for consultations to evaluate whether they have a valid adverse possession claim.

Proof Required in Adverse Possession Cases

To win on a claim of adverse possession in court, the claimant needs to present actual evidence to prove each of the required elements of adverse possession. The most significant element that will require proof is that the claimant has been in possession of the disputed property for the required 20 year period.

Proof in adverse possession cases can come in a variety of forms. Witness testimony is usually the most common (and the most readily available) type of evidence in these cases. Witness testimony can come from the claimants themselves, but it is more effective to have testimony from a neutral third party such as another neighbor. Pictures can also be very useful forms of evidence, especially if they can be accurately dated. Financial and billing records are also an option in certain cases (such as where the property was fenced in).

To better explain how proof and evidence work in an adverse possession case, let’s use a hypothetical example. Let’s say Jack and Jill are claiming adverse possession over a section of their backyard they fenced in 22 years ago. The adjacent neighbor is disputing their claim. Jack and Jill will be able to take the witness stand and testify as to when and where they erected the fence. If they want to make their case stronger, they can get another neighbor to testify that they remember when the fence was installed. Jack and Jill could also present financial records showing when the paid for the fence, or they could even track down the contractor who built the fence and see if they are willing to testify. If Jack and Jill happen to have pictures of the fence in place from more than 20 years ago, those would be very useful too.

In the scenario described above, Jack and Jill’s testimony alone might actually be enough to prove their claim even without any other supporting evidence. After all, Jack and Jill were the owners that installed the fence 22 years ago so they have personal knowledge of all the necessary facts.

It can get a bit more complicated, however, when the adverse possession claimants have not actually owned the property for the 20 year period and are relying the doctrine of “tacking” to establish their 20 years of possession. The tacking doctrine allows current owners to add their adverse possession period to that of the prior property owner in order to satisfy the 20 year requirement. So for example, let’s say Jack & Jill bought their property 10 years ago from Adam & Eve. The fence was still erected 22 years ago, but it was put up by Adam & Eve back when they owned the house. Under the tacking rule, Jack & Jill get to tack their 10 years onto Adam & Eve’s prior12 year possession in order to meet the 20 year requirement.

In this alternate scenario, the testimony from Jack & Jill alone will NOT be enough to support their adverse possession claim. Jack & Jill might have been told by lots of different people that the fence was erected by Adam & Eve 22 years ago, but that would all be inadmissible hearsay. Jack & Jill don’t actually have personal knowledge of when the fence was erected, so they would need someone who was actually around back then to testify. The ideal witnesses would be the prior owners (Adam & Eve), but they might not be available. The next best option would be to find a neighbor who has lived nearby for the last 22 years and can testify that they remember when the fence was installed.

If there are no witnesses available to testify about the fence being installed 22 years ago, Jack & Jill can possible track down documentary evidence. For example, if the neighborhood has an HOA there might be documents showing that the fence was approved by the HOA. There could also be building permits.

Example of a No Proof Adverse Possession Case

I recently had a consultation with a woman (Jane) who had just recently lost her adverse possession case because her lawyer failed to present the necessary evidence to establish her claim. Jane bought her house a few years back and when she bought it there was an existing chain link fence separating her yard and the neighbor’s yard. The fence was very old and had been there as long as anyone could recall.

At some point Jane spent $50,000 doing a major backyard remodel project. She built a large stone patio with a roof and had the landscaping redone. Jane also replaced the old chain link fence between her and the neighbor with a new brick masonry wall. The new brick wall was erected on exactly the same line where the old chain link fence had been for years.

While the new brick fence was still in the process of being built, Jane’s neighbor hired a surveying company to come out and survey the property boundary lines. The survey revealed that the old chain link fence (and Jane’s new brick fence that replaced it) was actually not on the lot boundary line. Instead, that fence line encroached some 12-15 feet into the neighbor’s property.

Jane finished the fence and her neighbor got a lawyer and file a trespass lawsuit against her. The trespass lawsuit claimed that Jane’s fence was trespassing onto the neighbor’s property and it sought a court order forcing Jane to remove the fence. Jane got her own lawyer who correctly filed a counterclaim against the neighbor asserting that Jane owned the disputed property based on adverse possession.

Jane’s adverse possession claim was very straight forward and very strong. It seemed obvious that the old chain link fence separating the lots had clearly been there for at least 20 years (and possibly even 50 years). This fact not only seemed obvious based on the appearance of the fence, but Jane was told by many neighbors that the fences dated back to the 1960s. Jane had only owned the house for 5 years, but she could tack her time of possession onto the prior owner’s time to meet the 20 year requirement.

This was an adverse possession case that Jane should have easily been able to win …. but she didn’t. Jane’s lawyer apparently assumed that the obvious old age of the fence would be enough for Jane to prevail. Her lawyer didn’t do any sort of investigation or make any effort to develop evidence to actually prove that the fence had been there for 20 years. Jane’s testimony was the ONLY evidence her lawyer presented, and Jane had not personal knowledge of what was on the property longer than 5 years earlier. He could have found a neighbor or a real estate agent who sold the property years ago, or maybe even a prior owner. He did none of that and the Judge had no choice but to rule in favor of the neighbor on the trespass claim.

The net result was that Jane now has a court order forcing her to remove the brick fence within 6 months — at her own expense.