Delaware is a popular home for America’s largest corporations—but it is also a home for thousands of American families. Whether you own a small home outside of Wilmington or a large townhouse in Dover, property owners should be aware of the doctrine of adverse possession. If you have neighbors whose land borders yours, and who start to cross the property line and use portions of your land, those neighbors might be able to gain legal title to those portions under a legal doctrine known as “adverse possession.” While it might be less likely to occur in a crowded city, it’s worth realizing that a trespasser can also essentially squat on your land and eventually claim legal ownership.
There may also be situations in which you yourself need to assert an adverse possession claim over land that you feel you've developed a right to use and want to continue using.
To make sure that your existing land remains yours—that is, that a neighbor or trespasser can’t lay claim to a portion of your land after having encroached on it for a while—it’s worth familiarizing yourself with Delaware’s laws on adverse possession.
Adverse possession is a legal concept that allows a trespasser—sometimes a stranger but more often a neighbor—to gain legal title over land that was once owned by someone else. The concept developed in early Britain, and has persisted as a way to achieve a fair result when one owner has neglected or forgotten about a piece of land while another has been using or caring for it for a long time, such that forcing that person to depart would create hardship.
Because adverse possession law is developed by state courts, it differs slightly from one state to the next. Delaware courts don’t make adverse possession easy. They repeatedly emphasize that they assume that a person who occupies the land of another does so with the latter’s consent. In other words, it’s up to the trespasser to prove a claim of adverse possession, by clear and convincing evidence. The legal holder of title is the presumed owner until the adverse possessor can meet that burden of proof.
Like in most states, adverse possession in Delaware can be proven based on the character of a trespasser’s possession and the length of time he or she possesses the land. While some aspects of adverse possession are spelled out in legislation (specifically Del. Code Ann. tit. 10 § 7901), courts dictate the elements that a trespasser must establish.
A trespasser’s possession must be 1) hostile (against the right of the true owner and without permission); 2) actual (exercising control over the property); 3) exclusive (within the possession of the trespasser alone); 4) open and notorious (using the property as the real owner would, without hiding his or her occupancy), and 5) continuous for the statutory period (which is 20 years in Delaware, under Del. Code Ann. tit. 10 § 7901).
For example, imagine that Dale and Elaine live next to one another in Wilmington. There is no dividing fence or apparent boundary between their yards. Dale builds a shed that is actually on Elaine’s side of the property, covering about ten square feet of earth. Elaine doesn’t say anything. Dale uses the shed as if it were on his own land. He does this for 21 years. Under the rubric described above, Dale can probably establish that he “owns” the land on which he was encroaching. From Elaine’s perspective, she could have stopped Dale by demanding over those 21 years that he remove his shed, or sign a rental agreement, which would make the use an agreed-upon one, rather than a “hostile” one. But Delaware courts will not allow her to suddenly eject Dale after sitting on her rights for over two decades.
At 20 years, Delaware has a particularly long time-period requirement for continuous occupancy of the land by the would-be adverse possessor. (In some states, the number is as low as five years, in certain circumstances).
Having said that, a trespasser does not necessarily need to occupy the land for that entire period. Sometimes, courts will allow “tacking on” of a previous trespasser’s occupancy of the land if there is a chain between them. In our example above, imagine that Dale sold “his” shed property to Ben after 17 years. If Ben inhabited the shed under all of the other adverse possession requirements for an additional three years, he would be able to claim title to the land against Elaine.
What if you’re a property owner and notice that a trespasser is on your land? Or you notice that your neighbor seems to be encroaching on part of your yard? Your first step, of course, is to speak with that person and remind him or her of your property boundaries.
But if the encroacher refuses to move, you might need to file an action to quiet title. This is essentially a judicial declaration that you own the land, and your neighbor or other encroacher does not. This sort of court order can come in handy, particularly if you’re looking to sell your property and need to give assurance to a prospective buyer about your boundaries.
In Delaware, one may not use the adverse possession doctrine to acquire title to property owned by the federal or state government. In other words, if you live alongside a state park in Dover, you cannot seek to expand your yard by “possessing” part of the parkland for 20 years.