Maryland Adverse Possession Lawyer

This page will explain the law of adverse possession. We will explain when and how you can claim adverse possession, the legal elements of adverse possession, its operation and effect, and the practice and procedure with regard to bringing a claim for adverse possession in court. The real estate attorneys at Penn Law Firm have extensive experience in litigating adverse possession claims across Maryland.

What is Adverse Possession?

Adverse possession is a legal rule or doctrine that allows a party who is not the actual, record owner of real property to become the owner (an claim valid title) if they have been in open and adverse possession of that property for a long period of time. The time period required to assert ownership by adverse possession varies in each state, but can be anywhere from 7 to 25 years. In Maryland, the time period required to assert adverse possession is 20 years. Md. Code Ann. § 5-103 Adverse possession is sometimes referred to as “squatters rights,” although that term is somewhat misleading.

Adversely possessing property for the required period of time is something that can happen intentionally. Here is a common example of “intentional” adverse possession. Lets say Jack and Jill are neighbors who own adjacent 1 acre lots. Jack decides he wants more space, so he erects a fence that deliberately and knowingly crosses over the property line and encroaches onto a large section of Jill’s adjacent lot. If Jack’s fence stays up for more than 20 years, he can claim adverse possession to assert ownership of the part of Jill’s land inside his fence.

Adverse possession can also occur as a result of unintentional conduct or actions. So in our example above, let’s say Jack erects his fence thinking its on the property line, but it actually encroaches on .25 acres of Jill’s lot. If the fence remains for 20 years, Jack is still entitled to assert adverse possession and claim ownership.

Elements of Adverse Possession

To establish title by adverse possession, the claimant must show possession of the claimed property for the statutory period (20 years in Maryland), and such possession must be actual, open, notorious, exclusive, hostile, under claim of title or ownership, and continuous or uninterrupted. So there are basically 6 separate elements to an adverse possession claim:

Possession for 20 years
Possession is actual, open and notorious
Possession is exclusive (not shared)
The claimant’s possession is “hostile”
Possession is under a claim of title
20 year period of possession is continuous and uninterrupted

All of these elements must exist and concur, and if any one element is wanting, the possession will not confer title. On the other hand, possession ripens into title where all the elements of adverse possession exist and concur and the possession is continued for the statutory period. We will briefly explain what each of these elements means.

(1) Possession for 20 Years

This element if fairly straightforward. To assert ownership by adverse possession in Maryland, the claimant’s “possession” of the property at issue must last for a minimum of 20 years. Maryland does recognize the doctrine of “tacking” which allows the current adverse possession “owner” to meet the 20 year criteria by tacking on years that prior owners were in adverse possession of the property. Here is an example of how tacking works. Let’s say Jack and Jill have adjacent 3 acre lots. Jack’s fence encroaches onto a 1 acre section of Jill’s property and Jack has maintained that land. Jack has only owned his lot for 15 years, so he wouldn’t meet the 20 year requirement. However, the fence encroaching on Jill’s land was erected 22 years ago by the prior owner of Jack’s lot. Jack can use the tacking doctrine to add his 15 years of adverse possession to that of the prior lot owner.

(2) Actual, Open and Notorious

The 20 year period of possession must be “actual,” meaning the claimant must be physically in possession of the contested land. That actual possession must also be “open and notorious,” which means that the claimant’s acts of possession of the land should be clear and obvious to anyone who visits the property. Erecting a fence or buildings is a classic example of open and notorious possession. The idea here is that if the real owner visits the property, it should be open and obvious that someone else in possession. Secret or hidden possession is not enough. You have to act like you own it for everyone to see.

Costello v. Staubitz, 300 Md. 60 (1984): This case focused on what is necessary to satisfy the “open and notorious” requirement of an adverse possession claim in Maryland. The court reasoned that fencing in and taking possession of disputed land does constitute open and notorious possession. However, acts taken by a landowner on their own land, for their own purposes, do not.

The level or type of use necessary to establish the “open and notorious” element varies depending on the nature of the disputed land. Maryland courts recognize the “woodlands exception,” which relaxes the use requirements for wild, unimproved, woodland property in adverse possession. The doctrine recognizes the fact that for wild or unimproved land, owners typically don’t do very much on the land in terms of use. So in an adverse possession case involving “woodland,” the plaintiff is not required to show the same level or type of use that would be expected on more developed land.

(4) Exclusive

The claimant must show that they were in exclusive possession of the contested property. That simply means that they were the only party in adverse possession of the property and it was not “shared” with the record owner, or with anyone else.

Porter v. Schaffer, 126 Md. App. 237 (1999) In this case, the court examines and explains the requirement that the claimant’s adverse possession must be “exclusive.” It basically says that if you are claiming adverse possession, you must show that you were the ONLY person who had possession of the disputed land. If the disputed land was shared with the public or the record owner it will defeat the adverse possession.

(5) Hostile (Non-Permissive)

This does not mean that the claimant has to have some sort of hostile intent when the occupy the property. This element simply requires the claimant that their adverse possession of the contested property was non-permissive and done without the express consent of the actual record owner of the land. For example, if there is an easement, lease or even an oral agreement by which the record owner gave the claimant permission to use or occupy the land, the possession would not be “hostile” and adverse possession doesn’t apply.

(6) Continuous

This is another very simple requirement. The claimant must show that their adverse possession was continuous and uninterrupted for the entire 20 year period. As discussed above, the doctrine of tacking can be used to meet the 20 year period by tacking the prior owner’s adverse possession period. However, the claimant (and their predecessors in interest) must have been adversely possessing the property for a full, continuous 20 year period. There can’t be any gaps in that period of possession.

Claiming Adverse Possession

If you meet all the required elements for adverse possession, you can assert or claim it in one of two alternative ways. First, adverse possession can be asserted as an affirmative defense in any legal action brought against you regarding ownership or possession of the property. For example, if a neighbor threatens legal action or actually brings a civil lawsuit against you to remove you from the property, you can assert your adverse possession claim defensively in response.

The second way to assert claim for adverse possession is to file a special type of civil lawsuit known as a quiet title action. This is basically a lawsuit in which you ask the court to issue a declaratory judgment order that states that you are the record owner and title holder of the contested property. That order can then be recorded in the land records and it has the same effect as a deed.

Common Adverse Possession Scenario

Adverse possession might seem like an obscure legal rule that rarely gets used or applied, but that is actually not the case at all. Adverse possession is something that gets asserted very frequently. By far the most common situation where this rule comes into play is in boundary encroachment disputes between neighbors — usually involving a fence that goes 10 feet onto the neighbor’s property. Here is a hypothetical example of a boundary encroachment dispute where adverse possession gets applied.

Let’s say Jane owns a house at 10 Main Street that sits on a 1 acre lot in a small subdivision with lots on either side. Jane’s spends $25,000 having her backyard redone, which includes erecting a fence and planting trees between her yard and the yard belonging to her next door neighbor Sally, who lives at 12 Main Street. Jane and Sally are good friends and have never had any disputes. Jane puts her fence and trees up along the middle line between her house and Sally’s house, which has always been treated as the dividing line between the 2 lots.

Fast forward 22 years. Jane’s fence is still there and the trees are huge now, but Sally moved away a few years ago. The new neighbors at 12 Main Street, Jack & Jill, are now building a pool and patio in their backyard. During the planning phase of that project, Jack & Jill get a boundary survey done which reveals that Jane’s fence and trees actually encroach 10-12 feet onto their property. Jack & Jill don’t really like Jane, and they need the space for their pool, so they send Jane a letter informing her of the encroachment and demanding that Jane remove the fence and the trees.

This is the classic scenario where adverse possession gets asserted. Jane can claim ownership of the 10 foot section where her fence encroaches on the neighboring lot because she has adversely possessed it for the 20 year period. Jane can either assert adverse possession offensively, by filing a quiet title action in circuit court (see a sample adverse possession complaint) or Jane can assert adverse possession as an affirmative defense if Jack & Jill file in court to force her to remove her fence.

Sample Adverse Possession Pleadings

Sample Adverse Possession Complaint – Example of a quiet title Complaint asserting adverse possession in Maryland. This Complaint seeks a declaratory judgment establishing ownership over a certain parcel of land based on adverse possession for the 20 year period.