This Land is Your Land? Q3 2022 Facts & Findings

The Homestead Act, enacted during the Civil War in 1862, provided that any adult citizen, or intended citizen, who had never fought against the United States government could claim 160 acres of surveyed government land. The settlers of the land, called homesteaders, were required to live on the land for a requisite period of time, build a home, and cultivate and make improvements on the land. The original homesteader (with a few exceptions) was then entitled to the property, free and clear. The Homestead Act is very similar in purpose to adverse possession, in that unused land is put into productive use, and if not used, you may lose your rights to the land.

Adverse Possession is a legal theory under which a person, often called a Squatter or Adverse Possessor (“Squatter” or “Adverse Possessor”) may enter and occupy your property without permission. If the requisite period of time and other requirements as defined in the specific jurisdiction and statutes are met, the Adverse Possessor may acquire valid title to the property. The procurement of the property by the Adverse Possessor is not based on the Adverse Possessor’s rights, but rather on the loss of the owner’s right to contest the Adverse Possessor’s claim. Adverse possession may occur as a result of trespassing or by a mistake made in good faith.

Claims of adverse possession often arise when a homeowner discovers that the property they have been using is not a part of their official boundary lines. Common law requirements to prove adverse possession vary between jurisdictions and have changed and advanced over time. Although some states may require additional elements to prove adverse possession, typically, the possession of the property by the trespasser must: (1) be continuous, (2) be hostile, (3) be open and notorious, (4) be actual, (5) fulfill the requisite period of time, and (6) be exclusive.

Continuous: An Adverse Possessor must maintain possession of the property in uninterrupted continuity. In some jurisdictions, however, the continuity of possession may be made by a successive Adverse Possessor if there is a relationship of privity between the Adverse Possessor and the Successor Adverse Possessor. The owner must perform some type of action to assert their ownership of the land, merely going upon the land is not enough to interrupt the continuity of the possession. In the event the continuity of possession is interrupted, the statute stops the time from running, and all rights of the actual owner are restored.

Hostile: The term “hostile” with respect to adverse possession, means that the possession by the Adverse Possessor infringes on the rights of the owner. In the event, the owner gives a license or consents to the Adverse Possessor’s use of the property, the possession is not hostile and not adverse possession. Some jurisdictions require the potential Adverse Possessor to know that they are trespassing to prove the possession is hostile.

Open and Notorious: Possession of the property by the Adverse Possessor must be obvious to the true owner and any other persons that may look at the property. An adverse possession claim will not succeed if the possession is not obvious enough to provide the actual owner notice or the possession of the property is secret. It is not necessary for an Adverse Possessor to provide notice ostentatiously by putting up signs or publishing such possession to provide notice to the true owner.

Actual: The Adverse Possessor must be in actual possession of the property, and the owner has a cause of action for trespass pursuant to the statutes of limitations set forth in that specific jurisdiction. Unless there is color of title, the Adverse Possessor will only be able to obtain title to the portion of the property that is actually used. If the property is farmland, the property must be farmed. If it is a home, the Adverse Possessor must actually live in the home. To prove the possession is actual is based on specific facts and requires more than just occasional use of the land.

Time: The time requisite that the property must be adversely possessed varies from state to state, and if the trespass was done under the color of title. Color of title is a title to a property that seems valid but technically is not. This may occur when a deed’s legal description is erroneous and two parties have a claim to the same property. Irrespective of the cause of the defect in the deed, if one of the parties can establish all the elements of adverse possession, that party can claim title to the land.

Exclusive: Each state has their own requirements to prove the possession is exclusive. Generally, the Adverse Possessor excludes others from possessing the property, does not share the control of the property with anyone else (unless in privity), and acts as if they were the actual owner of the property. Some states consider fences, plantings, and hedges to be valid to prove the possession exclusive; however, other states, such as New York, consider non-structural plantings, fences, and hedges to be de minimus and insufficient to show adverse possession.

Protect your property!
An owner may protect their property by calling the police and having the trespasser removed from the property, filing an action for possession or unlawful detainer, evicting the trespasser, posting no trespassing signs, installing an alarm on the property, or filing a quiet title action.

The purpose of an action to quiet title is to protect the true owner from being harassed by trespassers attempting to obtain title to their property. The true owner must be able to establish legal and equitable title and possession by clear proof. The burden is on the plaintiff in a quiet title action to prove their legal claim and possession of title prior to the burden shifting to the defendant to prove superior title.

If the actual owner desires to allow the potential Adverse Possessor to use a certain portion of the property, they may grant an easement or a license to that portion of their land, and reserve the right, title, and interest in and to that easement area. The easement will explicitly state the specific time frame the easement is in effect, and that during that time frame only the use and enjoyment of the property are being conveyed to the potential Adverse Possessor. An easement agreement does not transfer the right, title, and interest in the property and is perpetual unless stated otherwise in the easement agreement.

The true owner of the property may also use a license agreement to give an individual permission to use their land in some specific way. The license agreement is only to be used by the person in which it is granted, may not be transferred, and is terminable at will, or terminable upon an event, or other terms set forth in the license agreement. A license agreement does not generally run with the land. The principles behind homesteading and adverse possession both relate to the old adage “use it or lose it”. If the owner does not effectively use and possess the property, the party
who claims it first and has used it consistently over a requisite period of time is the owner of the property. As stated in the Black’s Law Dictionary, possession is “the fact of having or holding property in one’s power.” After all, possession still remains 9/10 of the law.

DEDICATION – This article is dedicated to Herbert Burgunder III, a real estate attorney from Baltimore, Maryland. On April 19, 2022, Mr. Burgunder died unexpectedly at the age of 53. At
the time of his death, I was his paralegal.

Mr. Burgunder had taught at the University of Maryland Law School as an adjunct faculty member in the legal analysis, writing and research program. He believed that legal documents should be written in plain language, for clear communication and understanding. Those beliefs were taught and practiced every day in his practice.

When I was asked to write this article, Mr. Burgunder was so happy for me to have had this honor bestowed upon me. He supported my growth, built my confidence, and was always teaching (even when he may not have known it).

I will never forget the day I wrote a contract for a client and provided it to Mr. Burgunder. After he reviewed the contract, he commented “It almost made me cry.” My first presumption was that I missed some verbiage or terms of the contract. When I responded in that manner, Mr. Burgunder said “No, you did not mess up, it was just that good.”

I am so blessed to have had the opportunity to work under Mr. Burgunder’s watchful eye and learn so much from him in the time I worked for him. No matter where my future leads, I know that I am better because of the time I spent as Mr. Burgunder’s paralegal.

Author Biography:

In 2017, Monica Thompson graduated from the Legal Studies program at Chesapeake College located in Wye Mills, Maryland, with honors of distinction, as a member of Phi-Theta Kappa, and was awarded the legal studies award for the class of 2017. Monica is a multi-faceted paralegal specializing in civil litigation, bankruptcy, real property, estates and trusts, land use, and corporate law. Monica passed the Certified Paralegal exam in 2020 and subsequently obtained her Advanced Paralegal certifications in Land Use and Trial Practice. She is employed by McAllister, DeTar, Showalter & Walker LLC in Annapolis, Maryland.