Leon Treherne v. Forsight, LLC a Delaware Limited Liability company, Ronald E. Hastings, and Cynthia R. Hastings

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

LEON TREHERNE, )
)
Plaintiff, )
)
v. ) C.A. No. 2018-0854-PWG
)
FORSIGHT, LLC, a Delaware Limited )
Liability company, RONALD E. )
HASTINGS, and CYNTHIA R. )
HASTINGS, )
)
Defendants )

MASTER’S REPORT

Date Submitted: February 11, 2022
Final Report: June 6, 2022

Dean A. Campbell, Esq., LAW OFFICES OF DEAN A. CAMPBELL, P.A., Milton,
Delaware, Attorney for Plaintiff

Ronald E. Hastings, Ponte Vedra Beach, Florida, Pro Se

Cynthia R. Hastings, Ponte Vedra Beach, Florida, Pro Se

GRIFFIN, M.
1
 Pending before me is a petition to quiet title by adverse possession. The

property at issue is a small, landlocked parcel of land with a church building outside

of Seaford, Delaware. A pastor had purchased a parcel of land adjacent to the church

property in 1963 and, thinking he had also purchased the church property, began

operating a church on the church property beginning in 1970. In 1995, Petitioner’s

father began renting the property from the pastor and using the church property for

his congregation, and then later bought the property from the pastor. In 2011,

petitioner inherited his father’s interest in the property and claims ownership of the

church property by adverse possession. A developer claims ownership of the church

property, tracing his title to deeds between himself and family members from the

1970s. The developer claims that petitioner’s possession is permissive and that he

and the original pastor reached an arrangement in 1980, by which that pastor could

use the land and church without paying rent. I find that petitioner proved that he

and his predecessors in interest adversely possessed the church property for over 20

years, and that the developer failed to prove that their use was permissive. This is a

final report.

2
 I. BACKGROUND1

A. Factual Background

At dispute is a parcel of land containing approximately 26,148 square feet,

more or less (“Disputed Land”), which is improved by one building (“Church”).2

On October 26, 1963, Howard Lane, Jr. (“Lane”) conveyed land (“1963 Tract”) to

Edward Holley (“Holley”) described as:

Beginning at a point in the northern right-of-way line of the said private
road which is approximately 200 feet west of the said Route 516; thence
with the line of the said private road in a westerly direction two hundred
(200) feet to a stake; thence at right angles in a southerly direction One
Hundred Fifty (150) feet; thence in an easterly direction two hundred
(200) feet; thence in a northerly direction one hundred fifty (150) feet
to the said private road, the point of beginning, and containing 30000
square feet of land, more or less.3

On or before 1970, Holley began operating the Solidrock Apostolic Church of the

Lord Jesus Christ (“Solidrock”) on the Disputed Land, which is adjacent to the 1963

Tract.4 On August 15, 1978, Holley and his wife conveyed property described

similarly to the 1963 Tract to Solidrock, with the condition that “[i]n the event that

this property shall at any time be used for other than church purposes, … the grantors

1
I refer to the transcript of the December 14, 2021 evidentiary hearing as “Trial Tr.” I
refer to the Plaintiff’s Trial Exhibits as “Pl.’s Tr. Ex.” I refer to the Defendants’ Trial
Exhibits as “Defs.’ Tr. Ex.” I refer to the Docket Items as “D.I.”
2
D.I. 1, ¶¶ 13, 14;
3
Defs.’ Tr. Ex. 8. The 1963 Tract is identified as Tax Parcel 2-31-12.00-161.00. See Pl.’s
Tr. Ex. 7.
4
Trial Tr. 192:18-193:9; id. 214:24-215:2; see also id. 19:8-12.
3
… may reenter and take possession …”5 On August 24, 1978, Defendant Ronald E.

Hastings (“Hastings”) and his mother deeded contiguous land to the east of the 1963

Tract (containing 27,000 square feet more or less) to Holley (“1978 Tract”).6 Holley

continued to use and maintain the Church and Disputed Land through the 1980s and

into the early 1990s.7 He put a sign for the Church out by the road when he moved

onto the Disputed Land.8 On February 13, 1997, Holley conveyed the 1978 Tract to

his son, John Rhodes, Jr. (“Rhodes”),9 and on March 26, 1997, Holley, individually

and on behalf of Solidrock, conveyed the 1963 Tract to Rhodes, and also executed a

quitclaim deed and conveyed any possibility of reverter to Rhodes.10

5
Defs.’ Tr. Ex. 10.
6
Defs.’ Tr. Ex. 11. The 1978 Tract is identified as Tax Parcel 2-31-12.00-160.01. See
Defs.’ Tr. Ex. 16. Hastings testified that he and his mother had “entered into the agreement
in 1978 to deed that property to [Holley].” Trial Tr. 215:6-8. The 1978 Tract was part of
the lands conveyed to Hastings’ mother on April 19, 1976 (Parcel 2). Id.; Defs.’ Tr. Ex. 4.
Holley deeded the 1978 Tract to create a tenancy by the entirety with his wife on October
19, 1978. Defs.’ Tr. Ex. 12.
7
Trial Tr. 211:10-12. Solidrock obtained building permits related to the roof on the Church
in 1990, 1991 and 1993. Pl.’s Tr. Ex. 11. Hastings testified that Holley added an office
extension between 1989 and 1991. Trial Tr. 197:22-23.
8
Trial Tr. 215:20-22.
9
Defs.’ Tr. Ex. 13. Holley’s wife had predeceased him.
10
Pl.’s Tr. Ex. 2; Defs.’ Tr. Ex. 14; Defs.’ Tr. Ex. 15.
4
 Amos Treherne (“Amos”) began renting the Church and Disputed Land from

Holley in 1995,11 and operated the Church as the Pentecostal House of Prayer

(“Pentecostal”).12 On March 7, 2002, Holley and Rhodes conveyed both the 1963

Tract and the 1978 Tract to Amos.13 When Amos died in 2011, Plaintiff Leon

Treherne (“Treherne”) inherited Amos’ rights to the Holley Tract through intestate

succession.14 Amos made improvements to the Church and Disputed Land

beginning in 1996 through 2011, including rebuilding the inside of the Church (made

a pulpit, bought pews and installed a sound system, built a new kitchen, created an

office), installing on a new roof in 2002, repairing the Church’s cesspool, putting in

a light post, and maintaining the property by trimming and cutting down trees and

cutting the grass.15 He put a sign up for Pentecostal on Holley Road, which directs

access to the Church and the Disputed Land from Route 516.16 After Amos’ passing,

11
Trial Tr. 18:3-4. Leon Treherne testified that the agreement was to rent with the option
to buy. Id. 22:1-6; id. 55:5-7. I use first names in pursuit of clarity and intend no familiarity
or disrespect.
12
Id. 19:3-7; id. 21:2-5.
13
Defs.’ Tr. Ex. 16. Amos executed a purchase money mortgage for the properties on
March 7, 2002 payable to Rhodes. D.I. 41, Ex. A. There was a mortgage modification dated
April 16, 2016, and a mortgage satisfaction that was dated July 24, 2017 and recorded. Id.,
Exs. B, C.
14
Pl.’s Tr. Ex. 6; Pl.’s Tr. Ex. 7.
15
Trial Tr. 23:1-2; id. 27:6-8; id. 34:2-7; id. 39:1-9; id. 40:20-41:5; Pl.’s Tr. Ex. 11
(building permit to replace the roof issued to Amos as owner of the property in 2002);
Trial Tr. 41:12-42:6; id. 42:19-24.
16
Trial Tr. 53:22-54:7.
5
Treherne continued to make improvements and repairs to the Church and the

Disputed Land by building a sound room, fixing roof leaks and the floor, installing

a security system for the Church, and making sure the grass was cut.17

After Amos’ death, the Church continued to be operated as Pentecostal by

Sharon and Jerome Cannon (“Cannons”).18 On January 13, 2012, Treherne sued the

Cannons in the Justice of the Peace Court, which found that there had never been a

landlord tenant relationship between Treherne and the Cannons’ church.19 From

May of 2012 through December of 2017, Dolley Cannon-Pitts and Jessie Pitts

(“Pitts”), operating as Harvest Time Ministries, leased the Church from Treherne

and regularly paid $600 per month in rent.20 During that time, the Pitts performed

regular maintenance (cutting grass, taking care of the building) on the Church and

the Disputed Land.21 In January of 2018, Hastings contacted the Pitts, claiming

ownership of the Church and instructed them to stop paying rent to Treherne.22 They

17
Id. 46:14-47:1; id. 49:1-11; id. 70:14-18.
18
Id. 44:23-45:9.
19
See Est. of Treherne v. Cannon, C.A. No. S14J-03-070 (Del. Super.). I take judicial
notice of the procedural history and the holdings in this transfer of judgment from the
Justice of the Peace Court to the Superior Court. I do not rely upon the findings of fact
contained therein. See D.R.E. 201.
20
Pl.’s Tr. Ex. 12; Pl.’s Tr. Ex. 13; see also Trial Tr. 144:12-24; id. 145:1-8.
21
Trial Tr. 145:9-15.
22
Id. 147:23-148:18. Jessie Pitts testified that Hastings offered to rent the Church to the
Pitts but they declined because they were only going to pay rent to “the one who gave us
the key” (Treherne). Id. 149:5-15.
6
continued to hold services in the Church with Hastings’ permission until the

Church’s condition deteriorated so that it was unsafe.23 Hastings’ actions led to the

present dispute.24

B. Procedural History

Treherne filed a petition seeking adverse possession, quiet title and implied or

prescriptive easement rights (“Petition”) on November 26, 2018.25 The Petition

named Forsight, LLC (“Forsight”), Helen Mae Washington, and Bridget G.

Washington as defendants and Jerry C. And Candy L. Harris, Andre H. Burbage and

Dawn Jones Burbage as defendants “for notice purposes only” (collectively, except

Forsight, “Individual Defendants”).26 Forsight, Andre H. Burbage, Dawn Burbage,

Jerry C. Harris, and Candy L. Harris were served on or before December 12, 2018.27

Hastings and Cynthia R. Hastings (“Cynthia”) filed an answer (“Answer”) on

January 23, 2019.28 On February 4, 2019, Treherne moved to strike the Answer,

arguing that Hastings and Cynthia had no interest in the Disputed Land.29

23
Id. 66:23-67:5; id. 155:14-156:6 (roof leaks caused mold in the ceiling).
24
See Defs.’ Tr. Ex. 29.
25
D.I. 1.
26
Id.
27
D.I. 4. The sheriff returned a non-est for Bridget G. Washington and Helen Mae
Washington. Id.
28
D.I. 9.
29
D.I. 10.
7
 On February 26, 2019, the Court granted the motion to strike the Answer,

ordering Forsight to appear through Delaware counsel.30 On March 4, 2019, the

Court received Hastings’ response to the motion to strike the Answer.31 On March

5, 2019, the Court received a letter from Hastings, in which he contended that

Forsight had no interest in the Disputed Land and that he was the true party in

interest.32 On March 19, 2019, the Court vacated its February 26, 2019 order striking

the Answer and joined Hastings and Cynthia as parties to the action.33

On May 13, 2019, Treherne filed a motion for default judgment against

Forsight.34 Following a hearing, the Court entered default judgment against Forsight

on September 4, 2019.35 Treherne dismissed the Individual Defendants on February

26, 2020.36 There was an evidentiary hearing in this matter on December 14, 2021

by Zoom.37 Following the evidentiary hearing, the parties submitted simultaneous

written closing arguments on February 11, 2022.38

30
D.I. 11.
31
D.I. 12.
32
D.I. 13.
33
D.I. 16.
34
D.I. 17.
35
D.I. 26; D.I. 25.
36
D.I. 27.
37
D.I. 42.
38
D.I. 44; D.I. 45.
8
 II. ANALYSIS

A. Parties’ Contentions

Treherne argues that he and his predecessors in interest—Amos, Rhodes, and

Holley—established title by adverse possession to the Disputed Land.39 He asserts

that, from at least 1978, the Disputed Land and Church was used in a sufficiently

open, notorious, and hostile manner as to put the record owner on notice of the claim

by adverse possession.40 Treherne also contends that Hastings has no current interest

in the Disputed Land.41 Hastings responds that Treherne cannot prove adverse

possession because the use of the Disputed Land was not open and notorious,

exclusive or continuous, and it was always permissive.42

B. Record Ownership

As a threshold matter, the parties dispute who holds legal title to the Disputed

Land. Treherne contends that Forsight holds legal title to the Disputed Land,43 while

Hastings contends that he holds legal title to the Disputed Land.44 If Hastings has

39
D.I. 44, at 8-10.
40
Id.
41
D.I. 33, at 2-3.
42
D.I. 45, at 1-2, 7-10.
43
D.I. 33, at 2-3.
44
D.I. 45, at 9-10.
9
no interest in the Disputed Land, he has no standing here to raise a defense to the

quiet title action.45

The standard for proving legal title is preponderance of the evidence.46 The

“construction of a deed is a question of law upon which the court must rule.”47 “The

fundamental rule in construing a deed is to ascertain and give effect to the intent of

the parties as reflected in the language they selected.”48 The “scope and extent of a

grant [of land] contained in a deed depends upon the meaning of the language of the

deed, and where that language contains ambiguities the deed must be read in the

light of the intent of the parties as determined by the facts and circumstances

surrounding the transaction.”49

45
See Jackson v. Wax, 171 A. 755, 756 (Del. Ch. 1934) (“[A] bill to quiet title may be
brought by a complainant who claims in good faith a title by adverse possession against
the holder of record title.”) (emphasis added); see also David v. Steller, 269 A.2d 203, 204
(Del. 1970); Scureman v. Judge, 626 A.2d 5, 12 (Del. Ch. 1992).
46
See ABC Woodlands, LLC v. Shreppler, 2012 WL 3711085, at *2 (Del. Ch. Aug. 15,
2012) (citing Doe v. Roe, 80 A. 352, 354 (Del. Super. 1911)); see also State v. Sweetwater
Point, LLC [hereinafter Sweetwater Point], 2017 WL 2257377, at *8 (Del. Ch. May 23,
2017).
47
Rohner v. Niemann, 380 A.2d 549, 552 (Del. 1977) (citation omitted); see also Smith v.
Smith, 622 A.2d 642, 645 (Del. 1993).
48
Smith, 622 A.2d at 646 (citing Rohner, 380 A.2d at 552); see also Phillips v. State, ex
rel. Dep’t of Nat. Res. & Envtl. Control, 449 A.2d 250, 253 (Del. 1982) (citations omitted);
Sweetwater Point, 2017 WL 2257377, at *8.
49
Rohner, 380 A.2d at 552.
10
 The claim that Forsight owns the Disputed Land stems from a February 4,

2013 deed (“2013 Deed”) conveying property from Hastings to Forsight which is

described, in relevant part, as “Parcel 2: (2-31-12.00-156.00)” and as

All that certain tract, piece and parcel of land situate, lying and being
in Nanticoke Hundred, Sussex County, Delaware situated on the West
side of County Road 516 bounded by lands now or formerly of James
Clayton and Isaac Clayton to the North and on the South by lands now
or formerly of Howard F. Lane, containing 9.55 acres, more or less, and
being Parcel 8 from a Deed from Norman E. Hastings to Ronald E.
Hastings dated December 14, 1979, which is of record … in Deed Book
987 at Page 236 et seq.”50

Parcel 8 can be traced back through deeds to lands conveyed to Howard F. Lane,

Howard Lane, Jr. (“Lane”)’s father through a monitions sale.51 Hastings argues that

only Parcel 8 was transferred to Forsight in the 2013 Deed and the Disputed Land is

contained within other lands he continues to own that were originally conveyed to

Lane by Harold E.B. Matthews and others (“Matthews Tract”) on February 9,

1942.52 Lane deeded small parcels of the Matthews Tract to Holley and to the

50
Defs.’ Tr. Ex. 1 (emphasis added).
51
Defs.’ Tr. Ex. 2 (Parcel 8 in the deed dated December 14, 1979 and recorded in Deed
Book (“D.B.”) 987, Page (“P.”) 237, contains the same description as the 2013 Deed and
states it is part of the land conveyed through a deed dated April 19, 1976 (“1976 Deed”)
and recorded in D.B. 800, P. 106); Defs.’ Tr. Ex. 4 (Parcel 9 in the 1976 Deed, which is
found at D.B. 800, P. 109, contains the same description as in the 2013 Deed and contains
lands that were conveyed to “Howard F. Lane by John S. Isaacs, Receiver of Taxes and
being of record in the Office of the Recorder of Deed, Georgetown, Delaware, in Deed
Book 297, page 4”).
52
See Trial Tr. 227:17-228:11; Defs.’ Tr. Ex. 8; Defs.’ Tr. Ex. 4 (“Parcel 2”).
11
Washington family.53 By December 14, 1979, through estate administrations and

intra-family transactions, Hastings consolidated ownership in the remaining portion

of the Matthews Tract, which was described as:

All the rest, residue and remainder of land, lying and being in Nanticoke
Hundred, located on the West side of County Road 516, adjoining lands
now or formerly of Charles Washington, Edward Holley, Charles L.
Harris, Mary Stewart, other lands of the Grantors and Grantees, and
others, containing 22.83 acres, more or less. 54

On October 29, 1985, Hastings executed a deed (“1985 Deed”) to himself “for

the purpose of forming one parcel out of the remainder of Tax Parcel 2-31-12-160

and Tax Parcel 2-31-12-156 Sussex County.”55 The 1985 Deed appears to include

Hastings’ lands designated as separate parcels in prior deeds and specifically states

that the lands being transferred are bounded on the east by “lands now or formerly

of [Solidrock]; lands now or formerly of [Holley].”56 Since the Disputed Land is

immediately adjacent to the west of the 1963 Tract (lands owned by Holley, then

Solidrock), I find that it is included in the portion of the Matthews Tract owned by

Hastings that was transferred into Tax Parcel 2-31-12.00-156.00 (“Tax Parcel 156”)

by the 1985 Deed.

53
See Defs.’ Tr. Ex. 6; Defs.’ Tr. Ex. 8.
54
Defs.’ Tr. Ex. 2 (Parcel 1). See Defs.’ Tr. Ex. 4 (Parcel 2); Defs.’ Tr. Ex. 3 (Parcel 1);
Defs.’ Tr. Ex. 2 (Parcel 1).
55
Defs.’ Tr. Ex. 17.
56
Id.
12
 However, the issue is whether the 2013 Deed transferred all lands in Tax

Parcel 156 into Forsight, including the Disputed Parcel, or only part of those lands

– Parcel 8. The 2013 Deed is ambiguous because the heading for Parcel 2 notes the

tax parcel number without any limitation (i.e., no P/O to signify part of), while the

description of the land limits the transfer to Parcel 8 only. So, it can be read as either

conveying only Parcel 8 or all of the lands transferred into Tax Parcel 156 by the

1985 Deed. Where there are ambiguities, deeds are read in light of the parties’ intent,

considering the facts and circumstances surrounding the transaction.57 Hastings, the

grantor, testified that the intent of the deed was to transfer only Parcel 8 and no other

parcels.58 His testimony is consistent with the description of Parcel 8 as the only

land being transferred to Forsight in the 2013 Deed.59 Thus, I conclude that Hastings

has provided sufficient evidence that he is the record owner of the Disputed Land

and has standing to raise a defense to this action.60

57
See Rohner v. Niemann, 380 A.2d 549, 552 (Del. 1977).
Trial Tr. 234:13-15. There is no evidence of Forsight’s intent. However, since Forsight’s
58

mailing address for property tax purposes is Hastings’ Florida address, I presume that
Hastings has some relationship with Forsight. Compare Defs.’ Tr. Ex. 38 with Defs.’ Tr.
Ex. 1.
59
But see Defs.’ Tr. Ex. 38 (Sussex County lists Forsight as owner of all of Tax Parcel 156
for property tax purposes).
60
There was some confusion whether Cynthia has an ownership interest in the Disputed
Land. See D.I. 9 (Cynthia responded to the Petition); D.I. 45, at 10 (Cynthia signed the
post-trial brief); but see Pl.’s Tr. Ex. 16, App. I (#14 Answer). None of the deeds through
which Hastings obtained ownership of the Disputed Land mention Cynthia, or “and wife”
13
C. Adverse Possession

To establish title by adverse possession Treherne must show, by a

preponderance of the evidence, open and notorious, hostile and adverse, exclusive,

actual possession of the Disputed Land, that was continuous for twenty years.61 “[A]

party claiming title or rights by adverse possession or use has the burden of proving

all the elements of an adverse holding[.]”62 Once that burden is met, it is incumbent

on the holder of record title – Hastings – “to establish that the possession or use was

permissive.”63

1. Open and Notorious, Actual, and Exclusive Possession

Hastings contends that the use of the Disputed Land was not open and

notorious, as there were no “No Trespassing” signs, fencing or barriers erected on

the Disputed Land, and he entered onto the Disputed Land and had his employees

on the property, during the period of adverse possession.64

“Open and notorious means that the possession must be public so that the

owner and others have notice of the possession. If possession was taken furtively or

or “et ux.” See Defs.’ Tr. Ex. 17; Defs.’ Tr. Ex. 3; Defs.’ Tr. Ex. 4. Therefore, there is no
evidence that Cynthia has an ownership interest in the Disputed Land.
61
Tumulty v. Schreppler [hereinafter “Tumulty”], 132 A.3d 4, 24 (Del. Ch. 2015).
62
David v. Steller, 269 A.2d 203, 204 (Del. 1970) (citations omitted).
63
Id. (citations omitted).
64
D.I. 45, at 7-8.
14
secretly, it would not be adverse and no title possession could be acquired.”65 The

issue of open and notorious possession “depends upon the particular land in

question.”66 “The requirement of actual possession overlaps to a large extent with

open and notorious possession.”67 The inquiry is whether “the possession comports

with the usual management of similar lands by their owners.”68 “Neither the actual

occupation, cultivation, nor residence is necessary where neither the situation of the

property nor the use to which it is adapted or applied admits of, or requires, such

evidence of ownership.”69 “The exclusivity element does not require absolute

exclusivity,”70 but that the adverse possessor “show exclusive dominion over the

land and an appropriation of it to his or her benefit.”71

I find that Treherne has proven each of these elements by a preponderance of

evidence. Treherne proved open and notorious possession of the Disputed Land

because he, his predecessors in interest, and their agents used the Disputed Land and

Church openly. Since at least the 1970s, there has been a sign on the main road

65
Tumulty, 132 A.3d at 27 (quoting Walker v. Five N. Corp., 2007 WL 2473278, at *4
(Del. Ch. Aug. 31, 2007)) (internal quotation marks and citations omitted).
66
Id. (citations omitted).
67
Id. at 30.
68
Id. (quoting Marvel v. Barley Mill Road Homes, 104 A.2d 908, 912 (Del. Ch. 1954)).
69
Id. (quoting Marvel, 104 A.2d at 912) (emphasis omitted).
70
Tumulty, 132 A.3d at 26.
71
Id. (quoting Walker v. Five N. Corp., 2007 WL 2473278, at *4 (Del. Ch. Aug. 31, 2007))
(internal quotation marks omitted).
15
advertising the Church’s presence.72 For over 50 years, Holley, Amos, and Treherne

have made improvements and repairs to the Church and Disputed Land, including

installing new roofs and making roof repairs, putting in a light post, rebuilding the

inside of the Church (made a pulpit, built an office, new kitchen and sound room,

bought pews and installed a sound system and security system, built a new kitchen,

created an office), repairing the Church’s cesspool, and maintaining the property by

trimming and cutting down trees and cutting the grass.73 Even though the Church

was typically empty most of the week,74 this is consistent with the use of the

Disputed Land as a Church, and maintenance was performed on other days.

Importantly, the use, occupation, and improvement of the Disputed Land and Church

for religious purposes was not furtive or secret,75 and it was sufficient to put a record

owner on notice that the Disputed Land and the Church were being used. Thus,

Treherne proved open and notorious possession by a preponderance of the evidence.

Treherne proved actual possession of the Disputed Land because he, his

predecessors in interest, and their agents used the Disputed Land and Church for

religious purposes. Holley, Amos, and Treherne made improvements and repairs to

72
Trial Tr. 215:20-22; see also id. 54:1-7.
73
See supra notes 7, 15 and 17, and accompanying text.
74
Trial Tr. 186:11-12.
75
See Tumulty, 132 A.3d at 27-28.
16
the Church and Disputed Land,76 and they or their agents consistently conducted

religious services in the Church between 1980 (when Holley began using the

Disputed Land) through 1995 (when Amos started renting) and 2017 (when Hastings

sought to oust Treherne from the Disputed Land).77

Treherne proved exclusive possession over the Disputed Land because he and

his predecessors in interest appropriated it to their benefit by charging rent 78 and

making repairs and additions to the Church.79 Although Hastings’ argues that

Treherne cannot show exclusive possession because Hastings and others went onto

the Disputed Land during the adverse period and Treherne and Amos failed to install

fencing or “no trespassing” signs,80 this does not defeat a showing of exclusive

possession. “[F]ences are not required for a successful adverse possession claim,”

especially where construction of a fence “would have been difficult.”81 Here,

fencing across Holley Lane to keep others out would have interfered with other

landowners’ access to their properties82 and erecting barriers to prevent entry onto

76
See supra notes 7, 15 and 17, and accompanying text.
77
Trial Tr. 17:12-20; id. 55:10-11; Id. 44:23-45:9; id. 145:1-8; id. 155:22-156:6.
78
See Pl.’s Tr. Ex. 12; Pl.’s Tr. Ex. 13; Trial Tr. 144:12-24; id. 18:3-4 (Amos paying rent
to Holley).
79
Trial Tr. 40:19-42:9; id. 34:1-7; id. 35:3-5; id. 42:2-6.
80
D.I. 45, at 7-9.
81
Tumulty, 132 A.3d 4, 28 (Del. Ch. 2015).
82
Trial Tr. 121:20-23.
17
church property to show exclusivity (fencing, “No Trespassing” signs) seems

antithetical to a church’s purpose of encouraging people to come to the church to

worship. Further, where others pass onto lands irregularly and temporarily, a court

may still find an exclusive possession sufficient to support adverse possession.83

Looking at the relevant period for Treherne’s claim of adverse possession, the

evidence shows that, since Hastings moved in Florida in 1997 or 1998,84 Hastings

and/or Cynthia very infrequently visited the Disputed Land (once in 2000, in 2005

and in 2017).85 Hastings testified that his employee, Herman Williams (“Williams”),

checked the Disputed Land “quite often,” “did most of the plumbing,” and “several

times did maintenance procedures around the [Disputed Land],” including a time

Williams repaired the water pump “sometime before 2006,” and also the septic

system, but provided no more specific proof.86 Cynthia testified that, around 2000,

Williams fixed Holley Lane, removed trash around the Church and closed the

impassable dirt road that ran from the back of the Disputed Land to their

83
Tumulty, 132 A.3d at 26-27.
84
Trial Tr. at 165:12-13.
85
Id. 166:6:11; id. 169:19-21; id. 173:23-174:21. Although Hastings testified that he
“visited the [Disputed Land] often,” id. 199:11-14, his specific descriptions of his contacts
with the Disputed Land show that he visited it irregularly.
86
Id. 197:24-198:1; id. 200:1-20.
18
development.87 She further testified that, in 2005, Williams worked on Holley Lane

again and she entered the Church with him at that time.88 Hastings and Cynthia

testified that, in 2017, they drove by the Church and noticed the ground had been

disturbed for what appeared to be a septic system, which is what “began this

lawsuit.”89

The evidence showed that Williams actually attended the Church at one time90

and Hastings testified that Williams “had full access to the [Church] because he did

work for Mr. Holley on his own.”91 Treherne and his agents had a key to the Church,

but Hastings did not.92 I do not find sufficient evidence to conclude that the

infrequent work Williams performed on the Disputed Land or the Church was

sufficient to show that Holley, Amos or Treherne were not in possession of the

Disputed Land (at least until the dispute in 2017 that led to this action), especially

given that Williams also worked for Holley.93

87
Id. 170:1-171:22. Cynthia testified Williams was making the improvements because
“you could see through the tree line from [their development] to the back of the property.”
Id. 170:22-171:3.
88
Id. 172:19-173:11 (Herman let Cynthia into the Church).
89
Id. 174:8-18; id. 202:12-23.
90
Id. 196:23-197:2.
91
Id. 200:23-24.
92
Id. 137:17-19; id. 149:19-150:1;
93
Further, Williams’ work on Holley Lane benefitted all of the properties that used the
road, not just the Disputed Land. See id. 121:16-23 (Treherne’s testimony that he “couldn’t
block the road [otherwise the people who lived back there] couldn’t get to their home”).
19
 2. Hostile Possession

“A use is adverse or hostile if it is inconsistent with the rights of the owner.”94

Or, “[h]ostile means against the claim of ownership of all others, including the record

owner.”95 “It is not necessary that one entering a property must expressly declare

his intention to take and hold the property as his own. The actual entry upon and the

use of the premises as if it were his own, to the exclusion of all others, is sufficient.”96

The adverse possessor must prove that the use was adverse to the rights of the record

holder.97

Treherne has established that his use and the use of his predecessors-in-

interest was adverse since at least 1995, when Amos first rented the Disputed Land

from Holley, who held himself out as the true owner of the Disputed Land.98 In

1997, when Holley conveyed his property interests to Rhodes, Rhodes held himself

out as the true owner of the Disputed Land and the Church, continuing the rental

agreement with Amos, including the option to purchase the Disputed Land.99 After

94
Berger v. Colonial Parking, Inc., 1993 WL 208761, at *4 (Del. Ch. June 9, 1993).
95
Bogia v. Kleiner, 2019 WL 3761647, at *10 (Del. Ch. Aug. 8, 2019) (citations and
quotation marks omitted) (alteration in original).
96
Tumulty, 132 A.3d 4, 27 (Del. Ch. 2015) (cleaned up).
97
See David v. Steller, 269 A.2d 203, 204 (Del. 1970).
98
Trial Tr. 18:3-4. As part of the rental agreement between Amos and Holley, Amos had
the option to purchase the Disputed Land and the Church. Id. 22:4-6; id. 55-5-7.
99
Id. 22:4; id. 140:19-24.
20
Amos believed he had purchased record ownership to the Church and Disputed

Land, he made improvements to the Church. After Amos’ death, Treherne held

himself out as the true owner of the Disputed Land and Church, and brought legal

action to vindicate his rights to the Disputed Land against other persons who claimed

an interest in it.100 Treherne held himself out as the true owner of the Disputed Land

and Church, leasing the Church and making improvements to the Church.101 The

evidence shows that Treherne and his predecessors in interest made “use of the

[Disputed Land] as if it were [their] own.”102 Thus, Treherne has established hostile

possession.

3. Continuous Possession

The twenty-year continuous possession requirement “is a bright-line

inquiry.”103 “In order to make up the prescriptive period, successive adverse users

by different persons may be tacked [or added together], but there must be privity

between such persons.”104 The doctrine of tacking may be invoked where the

100
See supra note 19. When Treherne prepared an inventory for Amos’ estate, he included
the Disputed Land as part of the estate’s property. See Pl.’s Tr. Ex. 7.
101
Pl.’s Tr. Ex. 12; Pl.’s Tr. Ex. 13; Trial Tr. 144:12-24; id. 46:14-47:1; id. 107:3-17.
102
Tumulty, 132 A.3d 4, 27 (Del. Ch. 2015) (internal quotation marks and citation omitted).
103
Id. at 24.
104
Berger v. Colonial Parking, Inc., 1993 WL 208761, at *5 (Del. Ch. June 9, 1993)
(quoting Marta v. Trincia, 22 A.2d 519, 521 (Del. Ch. 1941)) (internal quotation marks
omitted).
21
“predecessor in title was under the impression that she was conveying to the

plaintiffs the property in dispute, and the plaintiffs were under the impression that

by reason of the deed they were obtaining title to that property” even if the

instrument does not convey legal title to the property.105 “Privity is the connecting

link; a paper transfer is only one means of establishing it.”106

Hastings argues that Treherne’s continuous possession did not include the

time Amos rented the Church or during Holley’s or Rhodes’ possession since they

did not own the land or claim adverse possession.107 I disagree. Treherne has proven

that he and his predecessors in interest have held the Disputed Land for more than

20 years. Holley and Rhodes held the Disputed Land beginning around 1980,

followed by Amos in 2002, and Treherne from 2011 until 2017. Although the deeds

did not convey legal title, Treherne presented sufficient evidence that Holley and

Rhodes believed they owned the Church and the Disputed Land and were conveying

rights in the Disputed Land to Amos and that Amos also believed he owned the

105
Marvel v. Barley Mill Road Homes, 104 A.2d 908, 913 (Del. Ch. 1954).
106
Id. at 914.
107
D.I. 45, at 8.
22
Church and Disputed Land.108 This is sufficient to establish tacking, and Treherne

has shown 20 years of continuous adverse possession.109

4. Adverse Possessors’ Use Was Not Permissive

Since I find that Treherne has shown, by a preponderance of the evidence,

open and notorious, hostile and adverse, exclusive and actual possession for more

than 20 years, Hastings must demonstrate that the use of the Disputed Land was

permissive to defeat Treherne’s claim, also by a preponderance of the evidence.110

Hastings asserts that the use was permissive.111 This could be established by

evidence of a landlord-tenant or other permissive relationship.112 Once established,

“[a] use that is initially permissive can become adverse only by express or implied

108
See Trial Tr. 22:4-6; id. 32:10-11; see also id. 38:20-21 (“[Amos] believed that church
was part of the deal when he bought the property.”); id. 55:5-7; id. 141:15-19 (“[Amos]
told the church that him and Mr. Holley sat down and discussed that [Amos] was going to
buy the land with the church and everything …”); id. 150:2-151:3 (Jessie Pitts’ testimony
that Holley “believed he owned [the Church]”).
109
See Marvel, 104 A.2d at 913.
110
In re Lot No. 36, 2004 WL 1087336, at *2 (Del. Ch. May 10, 2004) (citations omitted);
see also David v. Steller, 269 A.2d 203, 204 (Del. 1970) (the party claiming title or rights
by adverse possession is not required to disprove permissive possession).
111
D.I. 45, at 1-2; id. 9-10.
112
David, 269 A.2d 203, 205 (Del. 1970).
23
revocation or repudiation of the license.”113 The failure to pay or demand rent for

an extended period can extinguish a tenancy.114

Hastings testified that, in 1980 or 1981, he and Holley entered into a landlord-

tenant relationship in which Holley was permitted to use the Church and stay on the

Disputed Land so long as he used it as a church and maintained it.115 Hastings

testified that the agreement had been reduced to writing, but Hastings has since lost

that document.116 Importantly in this relationship, Hastings did not charge Holley

any rent.117 Hastings testified that he lost contact with Holley around 2001, at which

time Holley told Hastings that his son was going to take over the Church and the

Disputed Land.118

“The burden of proof is often dispositive in adverse possession and

prescriptive easement cases for the simple reason that the passage of time obscures

113
Jones v. Collison, 2021 WL 6143598, at *5 n. 68 (Del. Ch. Dec. 30, 2021) (quoting
Restatement (Third) of Property (Servitudes) § 2.16 cmt. f (2000)) (internal quotation
marks omitted).
114
See Monbar, Inc. v. Monaghan, 162 A. 50, 53 (Del. Ch. 1932) (failure to demand or pay
rent for 38 years extinguished the tenancy); Dougherty v. Flemming, 79 A. 104 (Del. Super.
1908) (failure to demand or pay rent for 60 years extinguished the tenancy); but see
Braunstein v. Black, 62 A. 1091 (Del. Super. 1900) (failure to pay rent for 16 years did not
extinguish the tenancy).
115
Trial Tr. 196:5-10.
116
Id. 199:1-8; id. 218:18-23.
117
Id. 248:8-9 (“I never collected rent from Mr. Holley, not a dime.”).
118
Id. 198:7-10; id. 198:22-199:4.
24
the relevant facts.”119 I find that this is the case here. Hastings claims that the use

has always been permissive because he and Holley were in a landlord-tenant

relationship, but he, the landlord, never charged or collected rent, very infrequently

visited the property, allowed the tenant to make whatever major changes he wished

to the building, including installing a new roof, adding a new kitchen and office,

without communicating with him, and did not even have a key to the property. The

evidence did not show that Hastings had contact with Rhodes or anyone else

associated with the Church after 2000.120 I find this description of a landlord-tenant

relationship to be so loose as to not be credible. Hastings testified that he had “over

… a hundred rental properties” in Sussex County121 and “emphasize[d] that [his]

operation wasn’t a mom-and-pop operation.”122 Yet, he never charged or collected

rent for the use of the Disputed Land and Church, and had minimal to no contact

with the purported tenant(s) for nearly 37 years.

Hastings admitted that he took steps not to disturb the Disputed Land and the

Church because “[i]t’s like having a rental … you make sure it’s there, but you don’t

disturb the tenant.”123 And, although he and Cynthia testified that Hastings’

119
Savage v. Barreto, 2013 WL 3773983, at *6 n. 48 (Del. Ch. July 17, 2013).
120
Trial Tr. 220:12-221:22.
121
Id. 218:19-20.
122
Id. 250:8-9.
123
Id. 201:2-4.
25
employees performed maintenance for the Disputed Land and the Church,124 the

examples provided of the work performed were minimal, and Williams also worked

for Holley.125

Thus, I conclude that Hastings has not met his burden of establishing the use

was permissive. Further, to the extent that there was a permissive use, I find that the

37-year period of not charging rent or otherwise asserting ownership over the

property extinguished the tenancy.126

D. Attorneys’ Fees

Treherne seeks attorney’s fees.127 “Delaware follows the ‘American Rule,’

which provides that each party is generally expected to pay its own attorneys’ fees

regardless of the outcome of the litigation.”128 Under the American Rule, each party

is normally responsible for their own attorney’s fees, whatever the outcome of the

litigation, absent express statutory language to the contrary or an equitable doctrine

exception, such as the bad faith exception.129 “The bad faith exception is applied in

124
See id. 199:19-200:20.
125
Id. 200:23-24.
126
See supra note 114 and accompanying text.
127
See D.I. 1, at 9.
128
Shawe v. Elting, 157 A.3d 142, 149 (Del. 2017) (citation omitted); see also ATP Tour,
Inc. v. Deutscher Tennis Bund, 91 A.3d 554, 558 (Del. 2014); Mahani v. Edix Media Grp.,
Inc., 935 A.2d 242, 245 (Del. 2007).
129
Delaware courts have awarded attorney’s fees for bad faith when “parties have
unnecessarily prolonged or delayed litigation, falsified records or knowingly asserted
frivolous claims.” Kaung v. Cole Nat. Corp., 884 A.2d 500, 506 (Del. 2005) (quoting
26
‘extraordinary circumstances’ as a tool to deter abusive litigation and to protect the

integrity of the judicial process.”130 This case provides no basis to conclude

Hastings’ actions implicated the bad faith exception and I recommend that the Court

decline to shift fees.

III. CONCLUSION

Based on the reasons set forth above, I find that Treherne has established title

to the Disputed Parcel and the Church through adverse possession and recommend

that the Court enter judgment in Treherne’s favor. This is a final report, and

exceptions may be taken under Court of Chancery Rule 144. Upon this report

becoming final, Treherne should submit an implementing order.131

Johnston v. Arbitrium (Cayman Islands) Handels AG, 720 A.2d 542, 546 (Del. 1998))
(internal quotation marks omitted); see also RBC Capital Markets, LLC v. Jervis, 129 A.3d
816, 877 (Del. 2015) (citation omitted).
130
Montgomery Cellular Holding Co. v. Dobler, 880 A.2d 206, 227 (Del. 2005) (citation
omitted).
131
The implementing order shall include as an appendix a metes and bounds description of
the Disputed Parcel based upon a final survey prepared from the preliminary survey
submitted as Pl.’s Tr. Ex. 10.

27