A Delaware Superior Court judge on Feb. 2 issued a decision allowing a woman who owns real estate property in Ocean View, Del., that is adjacent to property owned by a gay couple who spend the summer months in nearby Rehoboth Beach to assume ownership of the couple’s vacant lot through a little-known law in Delaware and other states called the “adverse possession” statute.

“We are in the shocked and depressed stage and freaking out a little bit,” said Burt Banks, who, along with his husband, David Barrett, were not aware that the neighboring property owner had been using the property in question for 20 years as required under the adverse possession law until 2021, when they put the property up for sale, Banks told the Washington Blade.

Banks said his family has owned the property for several generations and he inherited it a year after his father died in 2004. The judge’s ruling shows that Banks in 2016 deeded the property to himself and his husband Barrett in the form of a living trust.

When the couple put the property up for sale in 2021 and their Realtor set a $125,000 sale price for the property, a prospective buyer discovered the adjacent property owner had a claim on the couple’s property, according to the ruling by Judge Craig A. Karsnitz of the Georgetown, Del.-based Superior Court.

The judge’s ruling says Banks and Barrett then filed a Complaint for Ejectment against Mellissa Schrock to require that she vacate the property.

Karsnitz’s 27-page court ruling says Schrock filed a legal response challenging the ejectment complaint and a short time later filed a counterclaim invoking the Adverse Possession statute to gain legal rights to become the owner of the property in question. The ruling describes the property as an unimproved wooded lot consisting of “mature, densely foliated woodlands.”

The judge’s ruling says he decided in favor of Schrock because she met the criteria for invoking Adverse Possession, which includes occupying or using the property for at least 20 years continuously and doing so in an open and “notorious” way without objection from the owner.

“The matter was tried before me on Dec. 7, 2022, and I visited the property for a visual inspection on Dec. 8, 2022,” Karsnitz says in his ruling. “I asked the parties to submit their closing arguments in writing, which they both did on Dec. 20, 2022, the ruling continues.

“This is my decision after trial,” the judge states. “Because by a preponderance of the evidence I find open and notorious, hostile, and adverse, and exclusive use of the Property by Defendant, and actual and continuous possession of the Property by Defendant, for the twenty-year statutory adverse possession period, and finding no assertion of ownership or control by Plaintiffs during that period, I quiet title to the Property in Defendant,” the ruling declares.

“I also deny Plaintiffs’ Complaint for Ejectment,” it says.

The ruling also states that Banks and Barrett testified at the trial that Banks’ father had installed a saw mill on the property in the early 2000s and used the saw mill before he died in 2004. It says the couple also testified that they visited the property periodically over the years and never observed anyone else using the property, but they acknowledged they never placed a no-trespassing sign on the property or introduced themselves as the owner to any of their neighbors.

“There was no evidence that Plaintiffs used the Property as their own or sought to exclude Defendant from her use of the Property,” Karsnitz says in his ruling. “I therefore give Defendant’s testimony and other evidence more weight than that of Plaintiffs on this element,” the ruling states.

Banks told the Blade that he and his husband, whose main residence is in Atlanta, may not be able to afford at this time the cost of appealing the ruling to the Delaware Supreme Court. But he said the couple hopes the loss of their property will serve as a warning to others who buy property in the Rehoboth Beach area.

“We are meeting with our trial attorney this week and hopefully he can provide some guidance,” Banks said.