Banks v. Schrock
Unreported Memorandum Opinion and Order (2023)
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Rule of Law:
Delaware law permits a claimant to acquire title to real property by adverse possession if they demonstrate, by a preponderance of the evidence, open and notorious, exclusive, hostile and adverse, actual, and continuous possession of the property for the statutory period of twenty years.
Facts:
- Burton Evan Banks and David Michael Barrett, as Trustees of the Burton Evan Banks Revokable Living Trust (Plaintiffs), are the record title owners of Lot 2, an unimproved wooded lot in the Holly Park subdivision.
- Melissa R. Schrock (Defendant) is the record title owner of Lot 1, which adjoins Lot 2, and is improved by her home and a shed.
- On June 18, 2001, Ralph Banks Sr. (Plaintiffs' predecessor in interest) sold Lot 1 to Susan Hicks (Defendant's mother), and on January 29, 2016, Ms. Hicks deeded an interest in Lot 1 to Defendant.
- Ralph Banks Sr. died on May 5, 2004, and his son Burton Evan Banks inherited Lot 2 on April 4, 2005, subsequently deeding it to the Trust on September 21, 2016.
- Beginning in June 2001, Defendant and her family installed a chain link fence and a dog kennel, and later extended it for goats, cleared brush and limbs, stored building materials and yard equipment, established a children's play area, chopped wood, trimmed trees, and created walking trails across Lot 2.
- A portable sawmill belonging to Ralph Banks Sr. was present on Lot 2 since before June 2001; Defendant's father covered it with a new tarp in 2001, and Defendant's father sold it in May 2012, with the wooden beams from its base being recycled into a goat shelter.
- Ralph Banks Jr. and Burton Banks testified that Ralph Banks Sr. regularly used the sawmill on Lot 2 from 2001 until shortly before his death in 2004, and Ralph Banks Jr. continued to visit the sawmill monthly until its disappearance in 2012.
- Plaintiffs placed Lot 2 on the market in 2021, and a survey conducted for a prospective buyer revealed Defendant's fenced-in goat enclosure and other encroachments on the property.
Procedural Posture:
- Plaintiffs filed a Complaint for Ejectment against Defendant on November 15, 2021, in the Superior Court of Delaware.
- Defendant filed a Response and subsequently a Motion to Amend Answer and Counterclaim for Adverse Possession on March 23, 2022.
- The court granted Defendant's Motion to Amend Answer and Counterclaim on April 13, 2022.
- Plaintiffs filed their Reply to the Counterclaim on April 15, 2022.
- Plaintiffs filed a Motion for Summary Judgment on September 28, 2022.
- Defendant filed a Cross Motion for Summary Judgment (on the adverse possession claim) on October 17, 2022.
- The court orally denied both Motions for Summary Judgment.
- The matter was tried before the court on December 7, 2022.
- The court conducted a visual inspection of the Property on December 8, 2022.
- The parties submitted their closing arguments in writing on December 20, 2022.
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Issue:
Does a claimant acquire title to unimproved, wooded property by adverse possession when they demonstrate open and notorious, exclusive, hostile and adverse, actual, and continuous use of the property for the statutory twenty-year period, despite the record owners' occasional visits and conflicting testimony regarding earlier use?
Opinions:
Majority - Karsnitz, R.J.
Yes, a claimant acquires title to unimproved, wooded property by adverse possession when they demonstrate open and notorious, exclusive, hostile and adverse, actual, and continuous use of the property for the statutory twenty-year period, establishing each element by a preponderance of the evidence. The court found that Defendant satisfied all five elements of adverse possession. Regarding 'open and notorious' use, Defendant's public activities, including installing fences, animal enclosures, a children's play area, and clearing brush, were visible and put Plaintiffs on inquiry notice, despite Plaintiffs' claims they never observed these improvements. For 'hostile and adverse' use, Defendant's continuous use of the property as her own, for her family's sole benefit, was clearly against Plaintiffs' record ownership, and the court gave more weight to Defendant's testimony that she never saw Plaintiffs using the property. The 'exclusivity' element was met because Defendant demonstrated exclusive dominion, and the court ruled that even if Plaintiffs' predecessor used a sawmill on the property, it did not defeat Defendant's otherwise continuous exclusive use. The court determined 'actual possession' was satisfied as Defendant's use comported with the usual management of a backyard by an owner of improved property, thus apprising the community of her exclusive enjoyment. Finally, for 'continuity of possession,' the court credited Defendant's testimony that her family's adverse use began in June 2001 and continued uninterrupted, rejecting Plaintiffs' arguments that earlier sawmill use or later clearing broke the twenty-year period. Since Defendant proved these elements by a preponderance of the evidence, the burden shifted to Plaintiffs to show permissive use, which they failed to do. The court quieted title to the entire property in Defendant, finding her use of the whole lot, though varied in intensity, consistent with its nature.
Analysis:
This case strongly affirms Delaware's application of the common law adverse possession doctrine, underscoring that a record owner's passive neglect or infrequent oversight of their property can lead to forfeiture of title. It clarifies that a claimant need only meet the 'preponderance of the evidence' standard, rather than a higher 'clear and convincing' standard often seen in other jurisdictions or for prescriptive easements, which is significant for future litigants. The ruling serves as a stark reminder to property owners, especially those with unimproved or adjacent parcels, of the importance of actively monitoring their land, asserting ownership rights, and taking proactive steps to prevent encroachments from ripening into adverse possession claims. This case may encourage more adverse possession claims by providing a clear threshold for proof and demonstrating the court's willingness to credit a claimant's continuous visible use over a record owner's less engaged oversight.
