Yourik v. Mallonee

ADKINS, Judge. In this adverse possession dispute, mother and son are battling over the home where mother now lives — a residence that she has either occupied or rented to others for more than 40 years. After a bench trial, the Circuit Court for Baltimore County held that appellee Thelma Mallonee had established all the elements of adverse possession, including the requirement that the possession be “hostile,” even though she has always acknowledged that her son, appellant Andrew L. Yourik, has ⁴¹⁸ held a recorded deed to the property since 1964. Yourik appeals, raising a single issue for our review: May a person acquire title to property by adverse possession if she acknowledges that when she first took possession, and at all times thereafter, she has had actual knowledge that the legal title is in the name of her son?

We shall hold that a person who acknowledges legal title in a family member who abandoned the disputed property to foreclosure may occupy the property “hostilely” for purposes of acquiring that title by adverse possession. FACTS AND LEGAL PROCEEDINGS The property in question is located at 1208 Narcissus Avenue. In 1964, shortly after Yourik married, Mallonee and her now deceased husband selected a house for the newlyweds. Mallonee made the downpayment and paid all settlement fees and recording costs; the balance of the purchase price was obtained by mortgaging the property.

The deed to the property was titled in the name of Yourik and his wife Leonora, as tenants by the entireties. Within a year, however, the Youriks had not only separated, but also had become delinquent in their mortgage, resulting in foreclosure proceedings being initiated. With Yourik’s blessing, Mallonee and her husband “took over” the house and its mortgage. They paid the arrearage and continued making mortgage payments until that debt was paid in full.

Meanwhile, Yourik moved to Baltimore City, never again living in the house, paying anything toward it, or receiving any income from it. At most, Yourik returned to the house for occasional holiday visits with the Mallonees. Thus, beginning in late 1965 and continuing until trial in 2006, Mallonee either lived in the house or rented it out to others. She made all rental decisions without informing Yourik and kept all rental income.

She and her husband paid all the taxes and utilities, and made all expenditures for upkeep, improvements, and repairs. Mr. Mallonee died two years ⁴¹⁹ before trial; Ms. Mallonee lives in the Narcissus Avenue home by herself. At trial, Mallonee admitted that she knew at all times that record title to the property remained in Yourik and his former wife Leonora. Leonora’s interest did not concern Mallonee because, when Leonora moved out of the house in June 1965, she left a three page note stating that she was not coming back and did not want the house. 1 Mallonee and her husband “never asked” Yourik to “sign the house over” to them “because we knew he would one day.

He said we’d do it.” Mallonee testified that on one occasion, during a neighborhood block party, the topic of transferring title was raised in the presence of Mallonee, her late husband, and Yourik. But Mr. Mallonee stated that he did not want to discuss it further during the party “because they were drinking.” Instead, Mr. Mallonee told Yourik, “Come out the house and we’ll talk.” But Yourik “never come out the house. He never bothered.” Mallonee also admitted that all property tax bills were sent in the name of Andrew and Leonora Yourik, and that the Mallonees never claimed any of their property expenditures as an income tax deduction because Mr. Mallonee said “you can’t claim it if your name is not on it[J” Jennifer Yourik, appellant’s daughter and appellee’s granddaughter, testified that “[e]very time” Mallonee “talked about the house on Narcissus Avenue it was referred to as my father’s house.” According to Jennifer, although the Mallonees “took over the house” and rented it to others “when my father moved out,” her grandmother said “it would always be my father’s house.... My grandmother would always say, maybe one day it’s going to be your house because it’s your father’s house.” These statements were made during the 16 or 17 year period that Mallonee lived in another house in ⁴²⁰ Rosedale, when Mallonee was talking about what would happen after her death.

Jennifer understood this to mean that, “if anything ever happened to my grandparents,” “since I’m the only daughter the house would probably be willed to me ---- [i]f something ever happened to my father after that.” She also understood that her “grandmother was renting the house out for my father and collecting the rent on the house to pay the mortgage payment.” After trial, the court ruled in favor of Mallonee, concluding that Mallonee’s occupation of the property was under “claim of ownership” even though it was not under “claim of title.” Well, I don’t think there’s any question. There’s no claim of title. Mrs. Mallonee never claimed title. And if they were one in the same then she would lose.

But the question is ownership. Did she really think that she owned this property? ----Did they think it was theirs to do with as they wanted? And one looks at ... not what’s said, but what’s done. They do everything with that property that a person who had the best legal title would do.

They don’t ask Mr. Yourik’s permission to do anything. There’s no ... question in my mind that if they wanted to bulldoze the property ... they wouldn’t have asked him, because he doesn’t have anything to do with it. In their minds, they own the property. They paid everything on it.

They ... maintained it. They paid the taxes. They’ve paid the utilities. They rented it when they wanted.

They lived in it when they wanted. They said who could live in it____ Mr. Yourik didn’t have anything to do with that. They didn’t consult with him ever as the owner of the property for thirty-five years. They didn’t ask his permission to do anything, because they didn’t think they had to ...

He gave it up. He didn’t pay the mortgage payments----The property was going to be foreclosed upon. They took it over. (Emphasis added.) The court explicitly rejected Jennifer Yourik’s testimony that her grandmother said the house was “her father’s” as grounds for denying Mallonee’s claim for adverse possession. ⁴²¹ Because [Mallonee] refers to this as ...

Leo’s house, so, that means she thought that Leo owned the house? Well, that’s the way she described it. This is Leo’s. Leo’s house....

I don’t dispute that she may have said to Jennifer, ... you know, when I’m gone it’s going to be your house because your father doesn’t have anything to do with it____But he gave it up. So, we did everything. It was ours. And you know, who am I going to leave it to?

Who is going to get it? Jennifer, you are. I don’t dispute that that could have been said. But was it said with the view that Leo made the decisions about the house?

I don’t think so. By ... all the actions, there’s nothing that was done that suggests that. I don’t believe that some deal was made by Mr. Yourik that hey, this is my house. But I’m going to let you rent it out.

And the deal is, I keep the title, but you get the income from the house. I don’t think that deal was made. I don’t think that was even in Mr. Yourik’s consideration. He wasn’t in a position to make that deal.

Because ... the house was going to be foreclosed upon. He didn’t have any ability to prevent that----So I don’t believe that was the intention. (Emphasis added.) Finally, the court resolved that the dispositive legal issue of whether Mallonee’s knowledge that Yourik’s name remained on the deed precluded her acquiring title by adverse possession. I believe that from the evidence I’ve heard ... that certainly this possession was actual, open, notorious, exclusive, hostile.

And I believe it also was under a claim of ownership. Not title. I don’t believe that---- Ms. Mallonee knew that the deed existed. That had never been changed.

But____I think what you need is you believe you own the property____[I]f you believe that there is a superior title and you claim a title then you can’t claim by adverse possession.... But we’re not talking about title here. We’re talking about ownership.... Ownership is having the right to exercise control over it.

Dominion over it. Make decisions about. Do things with. And I really think that the Mallonees thought that they had ⁴²² that ... right---- [T]hey acquired ... legal title to the property by adverse possession.

(Emphasis added.) DISCUSSION “Adverse possession is a method whereby a person who was not the owner of property obtains a valid title to that property by the passage of time.” Md. Civ. Pattern, Jury Instr. 2:1 (MPJI-Civ.). “A number of policy justifications for the doctrine of adverse possession have been advanced.” Herbert T. Tiffany & Basil Jones, Tiffany Real Property, Neighbor § 6:2 (1975, through Sept. 2006) (hereafter cited as “Tiffany ”). Most commonly, “courts justify the existence and application of adverse possession” for one or more of the following reasons: First, there is a societal interest in “quieting” title to property by cutting off old claims. Second, there is a desire to punish true owners of land who neglect to assert their proprietary rights.

Third, there is a need to protect the reliance interests of either the adverse possessor or others dealing with the adverse possessor that are justifiably based on the status quo. Last, an efficiency rationale, asserting a goal of promoting land development, seeks to reward those who will use land and cause it to be productive. Id. Under Md.Code (1974, 2003 Repl.Vol.), section 14-108(a) of the Real Property Article (RP), governing quiet title actions, [a]ny person in actual peaceable possession of property, ... either under color of title or claim of right by reason of his ... adverse possession for the statutory period, when his title to the property is denied or disputed, or when any other person claims, of record or otherwise to own the property, ... the person may maintain a suit in equity in the county where the property lies to quiet or remove any cloud from the title, or determine any adverse claim.

(Emphasis added.) Maryland case law frequently includes language requiring the adverse possessor to “show that such possession was ⁴²³ actual, notorious, exclusive, hostile, under claim of title or ownership, and continuous or uninterrupted for the period of twenty years.” Gore v. Hall, 206 Md. 485, 490 , 112 A.2d 675 (1955) (emphasis added); see Banks v. Pusey, 393 Md. 688 , 709 n. 11, 904 A.2d 448 (2006); Hungerford v. Hungerford, 234 Md. 338, 340 , 199 A.2d 209 (1964); White v. Pines Community Improvement Ass’n, No. 2652, Sept. Term 2005, 173 Md.App. 13 , 917 A.2d 1129 , 2007 WL 656575 , ¹⁴ (2007). The requirement that a would-be adverse possessor must establish that she occupied the land under “claim of title or ownership” is our sole focus in this appeal. The trial court concluded that Mrs. Mallonee could satisfy this requirement by establishing either a “claim of title” or a “claim of ownership,” and that she had proven a claim of ownership. For that reason, the court held, Mallonee’s acknowledgment that Yourik held title to the property from the time she took possession of it did not preclude her adverse possession claim as a matter of law.

Yourik argues this was error, because “an adverse possession claim cannot be sustained where the person claiming adverse possession admits title in another.” Although we found no Maryland precedent specifically addressing this question, our review of established principles governing adverse possession persuades us that adverse possession is possible in this commonly occurring scenario. 2 ⁴²⁴ In Dean v. Brown, 23 Md. 11 , 1865 WL 1942 , ³ (1865), the Court of Appeals stated: The rule at law, as well as in equity, established by an unbroken course of authority, is, that possession, to be adverse, must be accompanied with a positive and exclusive claim of the entire title, and if the title claimed be subordinate to, or admits the existence of a superior title, the possession will not be taken as adverse to that title; nor does it matter how long such a possession may be continued, for it can have no effect in the way of barring the legitimate title. (Emphasis added.) Yourik misconstrues this language, along with the oft-repeated test that adverse possession claimants must occupy the property “under claim of title or ownership,” to mean that adverse possession can never be established by a claimant who occupies the property with knowledge that another person has legal and/or record title. This interpretation rests on Yourik’s misunderstanding of the terms “claim of title,” “color of title,” “claim of ownership,” and “claim of right,” all of which are alternative methods of proving that the claimant’s possession was sufficiently “hostile” to be “adverse.” As a first step in sorting through the semantics, we observe that “color of title” has a narrower meaning than “claim of title.” “Color of title is that which in appearance is title, but which in reality is not good and sufficient title.” Gore, 206 Md. at 490 , 112 A.2d 675 . When adverse possession is premised upon a deed or other instrument believed to convey title, but does not, whether because the instrument is invalid or otherwise fails to convey the claimed interest, that instrument will “give color” only if it is “prima facie good in appearance [so] as to be consistent with the idea of good faith on the party entering under it.” Id. at 490-91 , 112 A.2d 675 . ⁴²⁵ Yet the established rule, followed in Maryland, is that proof of color of title is not necessary to establish adverse possession.

Color of title is not an element of adverse possession unless made so by statute, as under provisions prescribing a shorter period of limitation than would otherwise be required. While there are a few isolated judicial statements broadly to the effect that color of title, or color of right, is essential to adverse possession, the general rule is well established that, in the absence of contrary statute, color of title is not an essential element of adverse possession and that entry and possession under claim of right, ownership, or title are sufficient. 2 C.J.S. Adverse Possession § 72 (footnotes omitted). See also 4 Tiffany, supra, Adverse Possession § 1147 (distinguishing “color of title,” which “refers to asserting title through an instrument that appears to convey title, but in actuality does not,” from “claim of title,” which more broadly “reflect[s] an intention to assert ownership over the property and claim it as one’s own”). Under Maryland law, there is only one statutory limitation period for adverse possession, and it is the same 20 years that has always governed actions to quiet fee simple title based on adverse possession.

See RP § 14 — 108(a); Md.Code (1974, 2006 RepLVol.), § 5-103(a) of the Courts & Judicial Proceedings Article. As the disjunctive in RP section 14-108(a) indicates, the legislature has decided that a claimant may establish adverse possession by proving “either ... color of title or claim of right.” (Emphasis added.) Thus, as this Court long ago recognized, “[c]olor of title is not a prerequisite to continuance of adverse possession, it [is] at most a preferred proof.” Mayor of New Market v. Armstrong, 42 Md.App. 227, 242 , 400 A.2d 425 , cert. denied, 286 Md. 754 (1979). Mallonee never asserted color of title. Rather, the trial court determined that she established a “claim of ownership,” ⁴²⁶ distinguishing this type of claim from one based on “claim of title,” apparently meaning “color of title.” We therefore proceed to examine whether that was error.

Language in the case law proclaiming a claimant’s obligation to assert both a “hostile” possession and a “claim of title or ownership” explains why the parties and the court examined these as separate requirements in proving adverse possession. To clarify the “adversity” necessary to establish adverse possession in Maryland, we observe that, whether an occupant asserts that her adverse possession occurred under color of title, claim of title, claim of ownership, or claim of right, these are merely alternative descriptions of how the occupant contends she has satisfied the “hostility” element of adverse possession. 3 As one treatise writer explains, [i]t has been asserted, by many of the courts in this country, that in order that the statute of limitations may run in favor of one in possession of land, the possession must be under claim of right or title____There would seem to be reason to doubt, however, whether, in asserting this requirement, the courts ordinarily have in mind anything more than a restatement of the requirement of hostility of possession. They do not ordinarily undertake to explain why a claim of title on the part of the possessor is necessary, and it appears that the rightful owner is quite sufficiently protected by the requirement of adverseness or hostility of possession. 4 Tiffany, supra, § 1147 (footnotes omitted). Thus, a “claim of title or ownership” is not a separate and distinct element of ⁴²⁷ an adverse possession claim, in addition to hostility.

See, e.g., MPJI-Civ. 2:1 (requiring a showing that possession was hostile, without mentioning a claim of title, ownership, or right); Barnes v. Milligan, 196 Neb. 50 , 241 N.W.2d 508, 511 (1976) (the terms “claim of right,” “claim of title,” and “claim of ownership” simply mean “hostile”). The plethora of phrases used to identify what are simply two different evidentiary ways to prove hostility may confuse rather than clarify. As the Supreme Court pointed out, misapprehension arises from the somewhat misleading, if not inaccurate, terms frequently used, such as “claim of right,” “claim of title,” and “claim of ownership.” “These terms, when used in this connection, mean nothing more than the intention of the disseisor to appropriate and use the land as his own to the exclusion of all others.” Guaranty Title & Trust Corp. v. United States, 264 U.S. 200, 204-05 , 44 S.Ct. 252, 253 , 68 L.Ed. 636 (1924) (citations omitted). See