TOLIVER, JUDGE.

Before the Court is a motion for declaratory judgment by the Plaintiff, Rosa Walker, seeking a judgment declaring that she is the sole owner of property located at 5 and 5 ½ North Street, New Castle, Delaware 19720 ("the Property") via adverse possession. After having reviewed the arguments presented by the parties, that which follows is the Court's resolution of the issues so presented.

STATEMENT OF FACTS AND NATURE OF THE PROCEEDINGS

The instant saga began when the Plaintiff and her parents, Matthew and Viola Roberts, initiated their occupancy of the Property at some unknown point in 1974 as tenants at will. The landlord and owner of the property was Frank Pendleton. The terms of the rental agreement are not known. However, what is known is that, on April 29, 1974, the Property was the subject of a mortgage foreclosure action against Mr. Pendleton. As a result of that action, a sheriff's deed, dated April 29, 1974, was conveyed to Defendant, the purchaser of the property, Steven Goldstein who did not record the document with the Recorder of Deeds. It appears that no other action was taken in support of that purchase in general, and certainly none that affected the occupancy of the Plaintiff and her parents.

Time passed and nothing else happened with regard to the Property until October 1, 1981. On that date, Mr. Pendleton executed a quitclaim deed conveying title to the Property to Mr. and Mrs. Roberts. The Roberts recorded the deed the same day it was executed. It is undisputed that up until that time, the Roberts family occupied the Property as tenants and that they believed Mr. Pendleton was their landlord and its owner.

The record reflects that after recording the deed executed by Pendleton, the Roberts held themselves out as the owners of the Property. Public records show that they assumed responsibility for the property tax bills and other assessments related to the occupancy of the Property. In addition, the utilities associated with the Property were placed in their names. Lastly, they no longer paid rent to Mr. Pendleton.

On February 19, 1982, after learning of efforts in the local paper by Mr. Goldstein to rent the property, the Roberts consulted with Judith Schuenemeyer, Esquire, an attorney employed by the Community Legal Aid Society. Ms. Schuenemeyer drafted a letter to Mr. Goldstein informing him that the Roberts owned the property and asking him to stop his efforts in that regard. Shortly thereafter, on February 23, 1982, Mr. Goldstein recorded the deed he had obtained as a result of the foreclosure sale in 1974.

It is unclear whether Mr. Goldstein notified the Roberts or the Plaintiff about the recordation of his sheriff's deed. In any event, the Roberts and the Plaintiff continued to live at the Property and to hold themselves out as the owners of the Property. After Mr. Roberts died in 1985, Mrs. Roberts obtained funds to improve the Property from the New Castle County Department of Community Development and Housing. The funds were secured by two mortgages on the Property, recorded in 1989 and 1992.

In addition, New Castle County tax records list Mr. and Mrs. Roberts as the owners of the property from October 1, 1981 until August 9, 1990. From that point forward the records reflect that the owner of the Property was Mrs. Roberts and the Plaintiff. Mrs. Roberts died in 1995 but the Plaintiff's residency went on unabated. The Plaintiff paid all applicable insurance, utilities and taxes.

On October 29, 1998, Goldstein executed a deed to Five North and Cecil Coston, the owner of the aforementioned entity. In order to secure the purchase of the Property, Five North obtained a mortgage in favor of Davenport Services, Inc., which is owned by Defendant Goldstein, in the amount of $50,000.00. Five North never made any payments on the mortgage. On April 30, 2001, Davenport instituted a scire facias sur mortgage action to foreclose on the Property based upon the defaulted mortgage obligation. On June 5, 2001, notice of the foreclosure action was mailed to potential lienholders and tenants in the Property including the Plaintiff.

On August 10, 2001, Davenport subsequently obtained a default judgment against Five North and Mr. Coston in the amount of $69,865.59 with interest The sheriff's sale to satisfy the default judgment was scheduled for March 12, 2002. The Plaintiff filed a motion to intervene and stay the sheriff's sale pursuant to Superior Court Civil Rule 24(a) with this Court on February 20, 2002. That motion was based upon Plaintiff's contention that she and her parents had acquired title to the property by adverse possession.

On May 19, 2003, this Court denied Plaintiff's motion to intervene, but granted her motion to stay sheriff's sale. However, the Plaintiff was required to file a companion action in Superior Court to address her claim of adverse possession within thirty days of the Court's order staying the sheriff's sale. This action was filed by Plaintiff on June 18, 2003 in response.

The Plaintiff contends that she has satisfied all of the elements necessary to establish title to the Property by adverse possession and that she is entitled to a declaratory judgment that she is the owner of the Property. In support of her position, the Plaintiff argues that the possession has been open, exclusive, notorious, continuous and adverse for the twenty year statutory period. As such, the Plaintiff is seeking a declaration that she is vested with marketable title.

The Defendants argue that the Plaintiff has not satisfied the requirements for adverse possession because her possession had not been adverse nor has it existed for twenty years. The Defendants also suggest that even if title to the Property passes to the Plaintiff as claimed, the Plaintiff is responsible for the mortgage on the property granted in favor of Davenport by Five North. Corp.

DISCUSSION

Standard of Review

As noted, Plaintiff filed this action seeking the entry of a declaratory judgment in her favor as to her claim of ownership of the Property in question. Disposition by means of declaratory relief is warranted when the following factors are satisfied:

(1)[i]t must be a controversy involving the rights or other legal relations of the party seeking declaratory relief;

(2)it must be a controversy in which the claim of right or other legal interest is asserted against one who has an interest in contesting the claims;

(3)the controversy must beetween parties where interests are real and adverse;

(4)the issue involved in the controversy must be ripe for judicial declaration.

None of the parties dispute that this action is one which is ripe for resolution by such means. Moreover, the law in this regard is clear. In order to prevail on a claim of adverse possession, a plaintiff must prove by, at the very least, a preponderance of the evidence that they have openly, notoriously, continuously and adversely possessed the land in question for a period of at least twenty years. The common law cause of action for adverse possession is codified at 10 Del. C. § 7901 , but the statute does not specify the specific burden of proof.

Adverse Possession

As noted above, the Defendants do not contest the fact that the Plaintiff has satisfied the open, exclusive and notorious elements of a claim for adverse possession. Rather, the Defendants argue that the Plaintiff's claim is defective because the possession of the Property by her family was permissive and not adverse. The Defendants further argue that the Plaintiff has not satisfied the time period requirement of 10 Del. C. § 7901 because the filing of the foreclosure action by Davenport on April 30, 2001, tolled the statutory time period.

A party claiming title or rights by adverse possession or use has the burden of proving all of the elements of an adverse holding; once that burden is met it is incumbent on the holder of record title to establish that the use or possession was permissive. In support of their argument that the possession of the Property was permissive, Defendants note that the Plaintiff and her parents lived at the Property under a landlord/tenant relationship from 1974 until at least October, 1981.

The Defendants initial argument is not persuasive. Nowhere in the Plaintiff's pleadings does she claim that her family's possession of the Property was adverse prior to October 1, 1981. While the Defendants are correct in their assertion that as tenants, the occupancy of the Property from 1974 to 1981 by Plaintiff and her parents as tenants was permissive and that the permissive nature of the possession cannot be considered adverse. The nature of the Plaintiff's and her parent's possession changed with respect to the landlord when there was a clear and unequivocal repudiation of the tenancy. The Defendant's assertion that the occupancy was permissive from 1974 to 1981 is of no consequence given the facts of this case.

Again, the Plaintiff's parents obtained a quitclaim deed from Mr. Pendleton in 1981, who up to that point in time had been acting as their landlord as well as the owner of the Property. That act was followed by continuous open assertions such as paying the property tax bill and having the utilities transferred to their name. As a result, the Defendants are incorrect when they state that "the first open assertion by Plaintiff's parents that they were possessing the Property in their own right, rather than as tenants, was by way of the letter from Judith Schuenemeyer on February 19, 1982."

The Defendants next assert that even if the statutory period did in fact begin to run on October 1, 1981, the continuous 20 year statutory requirement has not been satisfied because Davenport filed the foreclosure action on April 30, 2001, effectively tolling the statutory period six months before the adverse possession claim would have otherwise been effectual. The Defendants contend that because the Plaintiff filed a motion to intervene in the foreclosure action and stay the sheriff's sale, the period of time required to establish title by adverse possession had been tolled. This argument equally unpersuasive.

In addressing what actions are sufficient to toll an adverse possession statute, the Court of Chancery has stated:

Generally speaking, in order to interrupt the adverse possession period, the true owner must oust the adverse possessor, either by obtaining a judgment against the possessor or by entering the disputed property in a way that excludes him. The owners actions must be such to put a reasonably prudent person on notice that he has been ousted. An action that merely alerts an adverse possessor of a superior title, and does not attempt to oust him, has been found insufficient to toll an adverse possession statute.

Even viewed in the most favorable light, Davenport's filing of a foreclosure action cannot meet the requirements set forth for tolling an adverse possession statute. Davenport is a lienholder, not an owner and as such, their actions cannot work to toll the adverse possession statute.

Those issues having been addressed, it is necessary to determine whether the Plaintiff has satisfied the open, notorious and exclusive requirements of an adverse possession claim. 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 secretly, it would not be adverse and no title possession could be acquired. Plaintiff's possession of the Property was public. Plaintiff's parents recorded the deed on the day it was executed, further, they held themselves out as owners by paying taxes, utilities and all other assessments related to occupancy of the Property. The payment of taxes may be a weighty fact in support of adverse possession, especially when combined with other overt acts of ownership such as securing a mortgage on the property and the recordation of a deed. It appears from the record that the Plaintiffs have satisfied the open and notorious requirement of the adverse possession statute.

In order to satisfy the exclusive requirement of the adverse possession statute, the adverse possession must be one that is exclusive of the record owner and the public. Exclusive possession means that the adverse possessor must show an exclusive dominion over the land and an appropriation of it to his or her own use and benefit. Here, the record is replete with incidents where Plaintiff has shown exclusive dominion over the land and appropriation of the land to her benefit. A clear manifestation of her dominion over the land is that the Plaintiff's refused to allow potential buyers or renters to enter the property. Furthermore, the Plaintiff and her mother used the land to their own benefit in as much as they lived in the home and secured two mortgages to improve the home. Taken together, the record clearly establishes that the Plaintiff has satisfied the exclusivity requirement of the adverse possession statute. In sum, the Plaintiff has proven that her possession was open, notorious, exclusive, adverse and continuous. As a result, the Plaintiff must be deemed owner of the Property.

Survival of the Davenport Lien

Finally, the Defendant argues that if all else fails the issue of the mortgage that Davenport granted in favor of Five North should remain as a lien against the Property. The Defendants argue that because Delaware is a lien theory state, that when the adverse possession of a property begins prior to the inception of a lien caused by the record owner of the property, adverse possession should not affect the lienholder's rights and the lien should survive. While there is no Delaware authority on point, the Defendants argue their position is supported by the Arizona Court of Appeals in Stat-O-Matic Retirement Fund v. Assistance League of Yuma.

Unfortunately for the Defendants, that authority is not helpful.

First, the case law the Defendants cite is distinguishable. It appears that the Arizona Court of Appeals was concerned with a lien instituted prior to the point in time when the adverse possession began. Second, it is generally accepted that a title acquired by adverse possession relates back to the beginning of the adverse holding. In this case, that would mean Mr. Coston's title would be eliminated from the chain of title as would any mortgage he created following his aborted acquisition of the Property. This Court is also inclined to follow the widely accepted theory of adverse possession that title is acquired unencumbered by the claims of creditors of the former owner of the land, as well as free and clear of all liens against the property held by private parties.

In sum, the Plaintiff must be deemed to have acquired title to the Property by adverse possession. She has also acquired title free and clear of the Davenport lien. Finally, the Plaintiff concedes that the New Castle County mortgages are valid, obviating the need to address that issue.

CONCLUSION

GRANTED.

IT IS SO ORDERED.