Securing Possession of the House from the Non-Titled Spouse

by: Ronald L. Ogens and Christopher M. Wachter

Can a spouse holding title utilize a wrongful detainer action in Maryland to remove the non-titled spouse from the home?  The short answer appears to be yes, although as a practical matter some difficulties may arise in its use.

Section 14-132 of the Real Property Article of the Maryland Code addresses wrongful detainer actions.  “Wrongful detainer” is defined as “to hold possession of real property without the right of possession.”  Md. Code, Real Prop. §14-132(a).  The statute goes on to prohibit wrongful detainer, providing that “[a] person may not hold possession of property unless the person is entitled to possession of the property under the law.”  Id., §14-132(c).  Where one is in violation of the wrongful detainer statute, the “person claiming possession may make complaint in writing to the District Court of the county in which the property is located.”  Id., §14-132(d)(1).[1]  Where the court finds that the complainant is legally entitled to possession of the real property, the court shall enter judgment for restitution of possession to the complainant and issue its warrant to the sheriff or constable with instruction to deliver possession of the real property to the complainant.  See id., §14-132(f)(1).

The fact that the real property in question may be “marital property” pursuant to Maryland law should have no impact upon the District Court’s ability to eject a non-titled spouse with no right of possession from the home.  As the Court of Special Appeals of Maryland has recognized,  the term marital property has “no relationship to traditional concepts of property,” and “has nothing whatsoever to do with who owns it, possesses it, or uses it.”  Kline v. Kline, 85 Md. App. 28, 42-43, 581 A.2d 1300, 1307 (1990).  Rather, the concept of marital property only comes into play at the time of divorce, with its only purpose being to “enable a divorce court to adjust equities…by awarding one party or the other a sum of money if a division of property according to ownership would be inequitable.”  Id., 85 Md. App. at 43, 581 A.2d at 1307; see also Noffsinger v. Noffsinger, 95 Md. App. 265, 278, 620 A.2d 415, 421 (1993) (the marital property statute “does not create or establish property rights, merely equities that do not arise or even have any meaning except in the context of a divorce or annulment.”).  Thus, the designation of property as “marital” does not confer title or possessory interest to the non-titled spouse, and should not preclude a successful wrongful detainer action by the spouse with sole title to the home.

One potential roadblock to using a wrongful detainer action to remove a non-titled spouse from the home is a claim by that spouse for use and possession.[2]  The Family Law Article of the Maryland Code gives the Court the authority to award sole use and possession of the family home, irrespective of how that property is titled or owned, to a spouse with custody of any minor child of the parties, or a child who has a need to live in that home.  Md. Code, Fam. Law §8-208(a).  Under the statute, “family home” means “the property in this State that: (i) was used as the principal residence of the parties when they lived together; (ii) is owned or leased by 1 or both of the parties at the time of the proceeding; and (iii) is being used or will be used as a principal residence by 1 or both of the parties and a child.”  Md. Code, Fam. Law §8-201(c)(1).  The term “child” is defined as “a child: (1) under the age of 18 years; or (2) 18 years old or older and dependent upon a parent because of medical or physical infirmity.” Id., §8-201(b).

In summary, a wrongful detainer action appears to be a viable means to remove a non-titled spouse from the home.  As a practical matter, however, it is likely that the District Court would be hesitant to eject the non-titled spouse from the home if that spouse has made a claim for use and possession.  The practitioner seeking to utilize the wrongful detainer statute to remove the non-titled spouse of a client from the home, then, should be prepared to explain to the Court why use and possession does not apply.