calendar_today October 20 2023, By Pieper Bar Review

Updated October 20 2023. Originally published March 22 2023

One of the many criticisms of the bar exam is that it requires examinees to prove that they understand an incredibly broad range of subtopics that they will never need in their careers.  Subjects like the automatic attachment of a security interest in proceeds, a possibility of reverter, and adverse possession are all easy targets.  But every so often, these concepts escape the confines of the bar exam and specialized law firms, impacting real people.

In February 2023, Burton Banks lost a plot of land valued at $125,000 through the process of adverse possession.  Banks's neighbor, Melissa Schrock, who inherited an adjoining parcel from her mother, became the legal owner of Banks's Ocean View, Delaware, land land because she (and her mother before her), had exclusively used the Banks’s land for over 20 years.  They cleared in portions of the land, fenced off parts, and used it at different times for keeping dogs, chickens, and goats.  

Banks did not live on or near the property.  In fact, he was a Georgia resident who had inherited the undeveloped parcel in 2005, nearly four years after Schrock and her family had begun using it.  He claimed that he inspected the property in 2005 and drove past it annually, never seeing any evidence of use by the Schrocks.  He also had a fox den removed from the property and cleared a tree at the request of another neighbor on whose property it had fallen.  However, the Delaware court ruled that the Schrocks had acquired legal title to Banks's land through adverse possession. 

To acquire title to land through adverse possession, a trespasser (the role played by the Schrocks in this case) must prove several elements were present for a set period of time (20 years in Delaware).  

For purposes of quickly remembering the elements on a bar exam essay, we use the mnemonic DEACON:

D - The owner was under no DISABILITY (infancy or mental disability) when the adverse

possession began

E- EXCLUSIVE possession, not shared with the owner. 

A - ADVERSE, hostile possession (i.e. without the permission of the owner)

C - CONTINUOUS and uninterrupted actual possession 

O - Actual or constructive OCCUPANCY

N - NOTORIOUS and OPEN possession sufficient to put the owner and her neighbors on notice

that there is a trespasser on the land and that the owner has a cause of action for ejectment

In the Delaware court’s opinion, the Schrock family satisfied each of the elements.  There was no evidence that Banks's father, who first owned the property, was under any disability when the Schrocks first began using the land.  The Schrocks' possession was exclusive, because the Banks family never took possession of the land while they were there.  The Schrocks' possession was adverse and hostile because they never sought the permission of the Banks family when they used it.  The Schrocks actually possessed and occupied the property with their fences and animal enclosures.  Furthermore, the Schrocks’ possession was open and notorious, in that if the Banks family had inspected the parcel, they would have seen the fences and enclosures and know that someone else was effectively claiming an interest in their land.  

This last point was contested in the case because Banks claimed to have inspected the land and seen no evidence of any use of the land by the Schrocks or anyone else, but the court sided with Melissa Schrock’s version of the events.  Typically, courts require a higher level of proof to establish adverse possession (i.e. “clear and convincing” evidence), but in Delaware, only a preponderance of the evidence is required (i.e. the court believes one side more than the other, even if, for example, it is only 51% sure).

You can read the court’s opinion here, where it applies the DEACON elements and quiets title in favor of the Schrocks.  

© Pieper Bar Review, photo from Google Maps

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