Uthus v. Valley Mill Camp

Bruce Uthus v. Valley Mill Camp Inc., No. 7, Sept. Term, 2020. Opinion by Hotten, J.

REAL PROPERTY — LANDLORD-TENANT — LICENSEES. Determining whether a person

residing on property based on an agreement is a tenant or a licensee requires a reasonable

and objective analysis of the surrounding facts and circumstances. The lack of exclusive

possession and not paying rent indicates that the person is a licensee and not a tenant.

COURTS AND JUDICIAL PROCEEDINGS — JURISDICTION — DISTRICT COURT —

WRONGFUL DETAINER. Wrongful detainer is a permissive action. Parties who wish to

remove a person in unlawful possession of property may either file a wrongful detainer

action in the District Court, or they may pursue other legal remedies, such as a trespass

action in the circuit court.

Circuit Court for Montgomery County

Case No. 434503-V

Argued: November 5, 2020 IN THE COURT OF APPEALS

OF MARYLAND

No. 7

September Term, 2020

__________________________________

BRUCE UTHUS

v.

VALLEY MILL CAMP, INC.

__________________________________

Barbera, C.J.,

McDonald,

Watts,

Hotten,

Getty,

Booth,

Biran,

JJ.

__________________________________

Opinion by Hotten, J.

__________________________________

Filed: March 4, 2021

Pursuant to Maryland Uniform Electronic Legal

Materials Act

(§§ 10-1601 et seq. of the State Government Article) this document is authentic.

2021-03-04

12:08-05:00

Suzanne C. Johnson, Clerk

This appeal stems from a family dispute regarding a family business and the

resulting familial fallout. Respondent, Valley Mill Camp, Inc. (“Valley Mill”), terminated

the employment of Petitioner, Bruce Uthus (“Uthus”), and asked him to vacate the

campground residence where he had been living for approximately twenty years. When

Uthus refused to leave, Valley Mill filed a trespass action against Uthus in the Circuit Court

for Montgomery County. In response to a motion for partial summary judgment advanced

by Valley Mill, the court entered judgment in its favor. Thereafter, Uthus appealed to the

Court of Special Appeals, which affirmed. Uthus timely appealed to this Court, and we

granted certiorari to resolve the following question: “Can a person claiming the right to

possession against a person in actual peaceable possession of real property bring an action

in circuit court for common law trespass to recover possession of the property?”1

We answer the question in the affirmative and for the reasons expressed below, shall

affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Valley Mill operates a children’s seasonal camp on a roughly sixty-acre parcel of

land near Germantown, Maryland. The land on which the camp is operated is currently

owned by Seneca Joint Venture, a Maryland general partnership that includes Bruce Uthus,

Uthus’ question, which we rephrased for the sake of clarity, presented in full asks:

1

“Can a person claiming the right to possession against a person in actual peaceable

possession of real property bring an action in circuit court for common law trespass to

recover possession of the property, when the Maryland legislature has committed such

actions for possession to the exclusive original jurisdiction of the District Court?”

Evelyn McEwan, Valley Mill, the Robert McEwan Trust, and Seneca Venture, LLC.

Valley Mill leases the property from Seneca Joint Venture.

Valley Mill had been family owned and operated since Robert McEwan started the

camp in 1956. Evelyn McEwan, who took over after her father Robert’s retirement, is

currently Valley Mill’s president and sole shareholder. Uthus is Evelyn’s son.

Uthus began working at the camp in 1995, at the request of his mother and

grandfather. In 1997, Uthus assumed various positions at the camp year-round, eventually

serving as camp director and member of Valley Mill’s board of directors. For the next

two decades, Valley Mill provided Uthus with a car, an apartment unit on the campgrounds

rent free, and health insurance, as part of his employment.

In May 2017, after some escalating familial disagreements, Valley Mill removed

Uthus from its board of directors and terminated his employment. Additionally, Evelyn

requested that Uthus vacate the campgrounds, but he refused.

Thereafter, Valley Mill sued Uthus for trespass2 in the Circuit Court for

Montgomery County on July 17, 2017. In response, Uthus argued that he was entitled to

indefinitely reside on the property, based on a past oral promise from his grandfather and

his partnership status at Seneca Joint Venture.

2

Valley Mill’s complaint also included claims for tortious interference with

economic relationships, defamation, and detinue along with the trespass claim, and sought

injunctive relief and damages, as well as eviction. The circuit court granted Uthus’ motion

for partial summary judgment on the tortious interference with economic relationships

claim and the remaining counts were subsequently dismissed by Valley Mill.

2

After discovery, Valley Mill moved for partial summary judgment. Following a

hearing on July 25, 2018, the circuit court found that:

[A]t this point there doesn’t appear to be any factual dispute about certain

facts, and that is that Valley Mill Camp has a lease on this property, and that

at some point Mr. Uthus was employed there at the camp, to help run the

camp, and that employment ended in May of 2017. And he was asked to

vacate the premises, and apparently he has not.

[U]nder the claim that’s been brought for trespass, Valley Mill has the

exclusive right to possess that property, and that they’ve given notice to Mr.

Uthus to vacate the property, which he hasn’t, which clearly shows that his

presence on the property is without the consent of [Valley Mill].

[Accordingly,] I’ll grant the motion for summary judgment as to the claim of

trespass, which is Count 4.

The circuit court also awarded nominal damages to Valley Mill and ordered Uthus to vacate

the property.

On August 10, 2018, Uthus filed a Motion to Alter or Amend the order of the circuit

court, alleging that the court both erred in granting summary judgment and lacked subject

matter jurisdiction over the trespass claim. The circuit court denied the motion.

Uthus timely appealed to the Court of Special Appeals, arguing that the circuit

court’s grant of summary judgment on the trespass claim was erroneous for lack of subject

matter jurisdiction, and alternatively, that no trespass occurred because Uthus was in

physical possession.

The Court of Special Appeals affirmed. First, the Court of Special Appeals held

that the circuit court properly exercised jurisdiction over the trespass claim because Uthus

was a licensee of Valley Mill, not a tenant. According to the Court of Special Appeals, the

failure of Uthus to pay rent reflected that Uthus was merely a licensee of Valley Mill.

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Second, the Court of Special Appeals held that there was a valid trespass claim because the

elements of trespass—intentional interference with the possessory interest of another—had

been established. Uthus timely appealed to this Court, and we granted certiorari.

STANDARD OF REVIEW

When reviewing a grant of summary judgment, we first determine whether there is

a genuine dispute of material fact. Koste v. Town of Oxford, 431 Md. 14, 24–25, 63 A.3d

582, 589 (2013). If no genuine dispute of material fact exists, we review questions of law

under the non-deferential de novo standard of review, that is, whether the circuit court’s

conclusions of law were legally correct. Koste, 431 Md. at 24–25, 63 A.3d 582, 589 (“On

review of an order granting summary judgment, our analysis begins with the determination

of whether a genuine dispute of material fact exists; only in the absence of such a dispute

will we review questions of law.”) (citations and internal quotation marks omitted). The

parties do not dispute the material facts here. Therefore, under a de novo standard, we

review the circuit court’s legal conclusions to determine whether they are legally correct.

DISCUSSION

The jurisdictional question raised here highlights some of the different options that

an owner claiming the right to possession of a property can take against a person in actual

possession. In that regard, we must define the parameters that distinguish a tenant from a

licensee.

Valley Mill is claiming possession from Uthus, who has remained in actual

possession of the apartment on the campgrounds following Valley Mill’s termination of

his employment and request to vacate the premises. The legal mechanism advanced by

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Valley Mill to regain possession was a common law trespass action in the circuit court.

Uthus argues that Valley Mill was limited to pursue an action to repossess the apartment

in the District Court, and that the circuit court lacked jurisdiction. We disagree.

The jurisdiction of the circuit courts and District Court is statutorily conferred under

Maryland Code, Courts and Judicial Proceedings Article (“Cts. & Jud. Proc.”). Section 1-

501 states: “The circuit courts are the highest common-law and equity courts of record

exercising original jurisdiction within the State. Each has full common-law and equity

powers and jurisdiction in all civil and criminal cases within its county . . . except where

by law jurisdiction has been limited or conferred exclusively upon another tribunal.”

There are specific instances where jurisdiction lies exclusively with the District

Court. Cts. & Jud. Proc. § 4-401(4) states: “[T]he District Court has exclusive original

civil jurisdiction in . . . [a]n action involving landlord and tenant, distraint, or wrongful

detainer, regardless of the amount involved[.]” While the District Court has exclusive

jurisdiction in landlord and tenant, distraint, and wrongful detainer actions, “the District

Court does not have jurisdiction to decide the ownership of real property or of an interest

in real property.” Cts. & Jud. Proc. § 4-402(b). Thus, if a real property dispute involves

“the ownership of real property or of an interest in real property,” Cts. & Jud. Proc. § 4-

402(b), the District Court does not have jurisdiction. However, if a case presents a

“landlord and tenant, distraint, or wrongful detainer” issue, then the District Court has

exclusive jurisdiction over that case, “regardless of the amount involved[.]” Cts. & Jud.

Proc. § 4-401(4).

5

In the instant case, Uthus argues that the District Court should have exclusive

jurisdiction over this action as either a landlord-tenant matter or wrongful detainer action.3

Landlord-Tenant

The existence of a landlord-tenant relationship is a prerequisite for the District Court

to have exclusive jurisdiction in this case pursuant to Cts. & Jud. Proc. § 4-401(4): “[T]he

District Court has exclusive original civil jurisdiction in . . . an action involving landlord

and tenant[.]” “It has long been the law in Maryland that, where the relevant facts are

undisputed, ‘the question whether the relation of landlord and tenant existed between the

parties . . . [is] a question of law to be determined by the Court upon the consideration of

the facts.’” Delauter v. Shafer, 374 Md. 317, 324, 822 A.2d 423, 427 (2003) (quoting

Howard v. Carpenter, 22 Md. 10, 23 (1864)); see also McDaniel v. Baranowski, 419 Md.

560, 574, 19 A.3d 927, 935 (2011) (“The legal relationship between landlord and tenant is

governed by the contract between the parties as well as any statutory authority.”) (internal

citations omitted).

3

The third possibility for the District Court to have exclusive jurisdiction under Cts.

& Jud. Proc. § 4-401(4), distraint, is not at issue here. As this Court has explained, “[t]he

landlord remedy of distraint simply refers to an action for distress for rent[.]” Hudson v.

Hous. Auth. of Baltimore City, 402 Md. 18, 29 n.7, 935 A.2d 395, 401 n.7 (2007); see also

State v. Goldberg, 437 Md. 191, 231 n.3, 85 A.3d 231, 255 n.3 (2014) (Watts, J., dissenting)

(“Black’s Law Dictionary defines ‘distrain’ as follows: ‘To force (a person, usu. a tenant),

by the seizure and detention of personal property, to perform an obligation (such as paying

overdue rent).’ Black’s Law Dictionary 508 (8th ed. 2004).”). Because Valley Mill is

seeking possession of the campgrounds and is not seeking rent from Uthus, distraint would

not be an appropriate action for Valley Mill to file and Uthus does not argue that the District

Court should have exclusive jurisdiction in this case as a distraint action.

6

The agreement between a landlord and a tenant typically takes the form of a lease,

which the Maryland Code, Real Property Article (“Real Prop.”) § 1-101(h), defines as “any

oral or written agreement, express or implied, creating a landlord and tenant relationship,

including any ‘sublease’ and any further sublease.” Although the record reflects that Uthus

and Valley Mill may have had an oral agreement regarding Uthus residing on the

campgrounds as part of his employment, the agreement was never reduced to writing.

To ascertain whether the oral agreement created a landlord-tenant relationship

between Valley Mill and Uthus, we consider “what a reasonable person in the position of

the parties would have thought the arrangement meant” under an “objective interpretation

of the writings and surrounding circumstances.” Delauter, 374 Md. at 324–25, 822 A.2d

at 427 (quoting Calomiris v. Woods, 353 Md. 425, 435–36, 727 A.2d 358, 363 (1999))

(internal quotation marks and citation omitted). To do so, we examine the defining

characteristics of a tenancy: possession, owner recognition, and rental payments. See, e.g.,

Curtis v. U.S. Bank Nat. Ass’n, 427 Md. 526, 536, 50 A.3d 558, 564 (2012) (“Under

elementary principles of real property law, a tenant properly on the premises of a property

has a right of possession as against a landlord.”); Delauter, 374 Md. at 326, 822 A.2d at

428 (“Other important factors indicating that the use of premises was under a license and

not a lease are whether any facts show that the alleged tenant was recognized as tenant by

the owner and whether rent was paid[.]”) (internal quotation marks and citations omitted);

University Plaza v. Garcia, 279 Md. 61, 66, 367 A.2d 957, 960 (1977) (“[I]n this State rent

is . . . payment for the tenant’s use, possession and enjoyment of the land.”); Miller v. State,

174 Md. 362, 368, 198 A. 710, 714 (1938) (“During the term of the tenancy, unless

7

permitted by the terms of the lease, a landlord has no more right to enter premises possessed

by the tenant than a stranger would have.”).

A landlord-tenant relationship likely exists when a person resides on the property of

a landowner by virtue of an agreement that includes payments of rent and exclusive

possession. The resident has the possessory right to exclude the landowner from entering

the property without permission of the resident. See, e.g., Curtis, 427 Md. at 536, 50 A.3d

at 564. The landowner, by virtue of the agreement, recognizes the resident’s right to reside

on the property, and the resident pays the landowner rent for residing on the property. See,

e.g., Delauter, 374 Md. at 326, 822 A.2d at 428. Thus, when the indicia of a landlord-

tenant relationship—exclusive possession, owner recognition, and rental payments—are

present, a landlord-tenant relationship may be formed, regardless of whether the parties

reduced their agreement to writing.

By contrast, a person residing on a property by virtue of an agreement with the

landowner which does not contain the indicia of a landlord-tenant relationship, may be

considered a licensee of the landowner and not a tenant. Unlike a tenancy, the licensee is

only on the property with “a license[, which] is merely a privilege to do some particular

act or series of acts on land without possessing any estate or interest therein.” Supervisor

of Assessments of Anne Arundel Cty. v. Hartge Yacht Yard, Inc., 379 Md. 452, 468, 842

A.2d 732, 741 (2004) (quoting Condry v. Laurie, 184 Md. 317, 320, 41 A.2d 66, 68 (1945)).

As this Court has long recognized, “a mere license may be revoked at the pleasure of the

licensor[.]” Baltimore & O. R. Co. v. Potomac Coal Co., 51 Md. 327, 330 (1879) (“[A

license] is a power or authority given to a [person] to do some lawful act, and is a personal

8

liberty to the party to whom given . . . [t]he general doctrine is, that a mere license may be

revoked at the pleasure of the licensor[.]”). See also Hartge Yacht Yard, Inc., 379 Md. at

468–69, 842 A.2d at 741–42 (citing Hess v. Muir, 65 Md. 586, 600, 5 A. 540, 543–44

(1886) (“Holding that the privilege of locating oyster lots on State-owned river bottom has

no elements of a grant by patent, but is simply a license, revocable at the pleasure of the

Legislature.”) (alterations omitted); Mayor & City Council of Baltimore v. Brack, 175 Md.

615, 622, 3 A.2d 471, 475 (1939) (“[A] license for the use of land is revocable, both at law

and in equity, whether the license is or is not executed by the expenditure of money by the

licensee; and that the latter, upon the revocation of the license, can claim compensation for

expenditures made by him upon the premises on the faith of the license, as against the

original licensor only.”); Rau v. Collins, 167 Md. App. 176, 192, 891 A.2d 1175, 1184

(2006) (“A license is also revocable at the pleasure of the party making it[.]”).

The issue of whether a person residing and working on land was considered a tenant

or a licensee, in the absence of a written agreement and the payment of rent, was before

this Court in Delauter v. Shafer, 374 Md. 317, 822 A.2d 423 (2003). In Delauter, a family

member inhabited and helped operate a family-owned farm for decades under a familial

agreement but did not pay rent or reduce any part of the agreement to writing. 374 Md. at

320–21, 822 A.2d 423, 425. This Court explained the distinction between an agreement

that creates a tenancy and an agreement that creates a license as follows:

“A tenancy involves an interest in the land passed to the tenant and a

possession exclusive even of the landlord except as the lease permits his

entry, and saving always the landlord’s right to enter to demand rent or to

make repairs. A mere permission to use land, dominion over it remaining in

the owner and no interest in or exclusive possession of it being given, is but

9

a license. That one who is tenant under a lease has the possession of the land

serves to distinguish him from a licensee, that is, a person to whom is given

merely permission to use the land for a specified purpose. Such a person has

not the possession of the land, this remaining in the licensor, and he has not,

it seems, any interest in the land which he can assert as against a third person,

that is, he has no rights in rem.

The question whether an instrument is a lease, creating an estate in favor of

another and the consequent relation of tenancy, or is merely a license, is one

properly of the construction of the language used, as showing an intention to

give possession vel non. That this is so has been quite often recognized.” [1

Tiffany, The Law of Real Property § 79, at 117–18 (3d ed.1939) (footnotes

omitted)].

“[I]f the language used purports to give another the right to use the land only

for a specific purpose, and there is nothing to show an intention to give the

right of possession, a tenancy cannot be regarded as arising.” 1

Tiffany, Landlord and Tenant § 7, at 25 (1910). See also Miller v. State, 174

Md. 362, 368, 198 A. 710, 714 (1938) (“During the term of the tenancy,

unless permitted by the terms of the lease, a landlord has no more right to

enter premises possessed by the tenant than a stranger would have”); Kessler

v. Equity Management, Inc., 82 Md. App. 577, 586, 572 A.2d 1144, 1149

(1990) (“It is an elementary principle of real property law that a tenant has a

right of possession of demised premises to the exclusion of the landlord”).

Other important factors indicating that the use of premises was under a

license and not a lease are whether any facts “show[ ] that [the alleged tenant]

was recognized as tenant by the” owner and whether “rent was

paid,” Howard v. Carpenter, 22 Md. at 25. See University Plaza v.

Garcia, 279 Md. 61, 66, 367 A.2d 957, 960 (1977) (“[I]n this State rent is ...

payment for the tenant's use, possession and enjoyment of the

land”); Worthington v. Cooke, 56 Md. 51 (1881).

374 Md. at 325–26, 822 A.2d at 427–28.

This Court concluded that the nonexistence of exclusive possession and the absence

of any rental payments demonstrated that the agreement was a license and not a lease. 374

Md. at 326, 822 A.2d at 428 (“[I]t is clear that no lease existed between the [parties]. [The

10

resident] never had exclusive possession of the farm[.] There was never a demand for rent.

No writings characterized this family relationship as one of landlord-tenant.”).

Delauter is an example of the appropriate case-by-case analysis employed to

determine whether an employment agreement creates a lease or a license. This Court

considered whether the resident paid the landowners rent for residing on the property and

whether the resident maintained exclusive possession with regards to the landowners.

Because neither exclusive possession nor payment of rent were present, this Court held that

a landlord-tenant relationship had not been formed. Delauter, 374 Md. at 327, 822 A.2d

at 428. We employ the same analysis here, considering the helpful hallmarks of a

tenancy—exclusive possession, owner recognition, and rental payments—to determine

whether the agreement between Uthus and Valley Mill created a tenancy.

For many years, Uthus worked for Valley Mill in various capacities and resided in

an apartment on the campgrounds. The parties did not reduce their agreement regarding

the occupancy of the apartment to writing. In the absence of a written agreement, we make

a reasonable and objective interpretation of the circumstances to determine whether the

elements of a landlord-tenant relationship—possession, owner recognition, and rental

payments—are met.

Uthus claims actual possession of the apartment based on residing there for many

years. However, we fail to see how that residency alone is dispositive of the question

before us. Uthus was removed from the board of directors of Valley Mill and remained an

employee until the president of Valley Mill, Evelyn McEwan, requested that he vacate the

apartment. By refusing to vacate the apartment on the campgrounds against the wishes of

11

the owner, in the absence of some other right to reside there, Uthus cannot claim possession

of the apartment in a way that would equate to a tenancy.

Uthus made no rental payments, nor did Valley Mill demand any rental payments

from him. Rental payments are a strong indicium of a landlord-tenant relationship, and

since rent was not part of the agreement between Uthus and Valley Mill, Uthus was not a

tenant of Valley Mill, but an employee who was allowed to reside in the apartment on the

campgrounds during the tenure of his employment. Once the employment was terminated

and Uthus was asked to vacate the premises, he no longer had the right to occupy the

apartment.

In sum, considering that Uthus remained in the apartment without an exclusive right

to possess the apartment, and failed to make any rental payments, we conclude that Uthus

was a licensee of Valley Mill and not a tenant. Therefore, inasmuch as Uthus was a licensee

of Valley Mill and not a tenant, the District Court would not have exclusive jurisdiction

over this action under Cts. & Jud. Proc. § 4-401(4) (“[T]he District Court has exclusive

original civil jurisdiction in . . . an action involving landlord and tenant[.]”).

Wrongful Detainer

“[T]he District Court has exclusive original civil jurisdiction in . . . an action

involving . . . wrongful detainer[.]” Cts. & Jud. Proc. § 4-401(4). Real Prop. § 14-132(c)

states that: “A person may not hold possession of property unless the person is entitled to

possession of the property under the law.” To hold possession of real property without

having the right of possession is a “wrongful detainer,” Real Prop. § 14-132(a), and the

“person claiming possession may make complaint in writing to the District Court of the

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county in which the property is located.” Real Prop. § 14-132(d). Uthus argues that the

wrongful detainer statute is mandatory. We disagree.

“In matters involving statutory construction, the canons applied by this Court are

well-settled and have been oft repeated. The predominant goal of statutory construction is

to ascertain and effectuate the intention of the legislature.” 75-80 Properties, L.L.C. v.

Rale, Inc., 470 Md. 598, 623, 236 A.3d 545, 559 (2020) (citations omitted). “[W]e begin

by examining the plain meaning of the statutory language. If the language of the statute is

unambiguous and clearly consistent with the statute’s apparent purpose, our inquiry as to

legislative intent ends ordinarily and we apply the statute as written, without resort to other

rules of construction.” In re R.S., 470 Md. 380, 402–03, 235 A.3d 914, 927 (2020) (internal

quotation marks and citations omitted).

Under 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.”

Real Prop. § 14-132(d) (emphasis added). This Court has long interpreted the term “may”

in a statute to be permissive. See, e.g., WSC/2005 LLC v. Trio Ventures Assocs., 460 Md.

244, 271, 190 A.3d 255, 270 (2018) (holding that “an award of attorney’s fees to a

prevailing party pursuant to [Cts. & Jud. Proc.] § 3-228(b) is merely discretionary and not

required” because the statute provides “that a court may award costs and disbursements.”)

(emphasis added); Porter v. State, 455 Md. 220, 261, 166 A.3d 1044, 1068 (2017) (Greene,

J., dissenting) (“the [relevant statute’s] mandatory language was replaced with

discretionary language in the current version, which provides that ‘the court may admit’

such evidence.”) (emphasis in original); Brodsky v. Brodsky, 319 Md. 92, 98, 570 A.2d

13

1235, 1237 (1990) (“The word ‘may’ is generally understood as permissive, as opposed to

mandatory, language.”); Rowland v. Harrison, 320 Md. 223, 232–33, 577 A.2d 51, 55–56

(1990) (holding that Maryland’s counterclaim rule, which states that parties “may interpose

a claim as a counterclaim[,]” by “its plain terms, is permissive and not mandatory.”);

Maryland-National Capital Park & Planning Comm’n v. Silkor Dev, Corp., 246 Md. 516,

522–24, 229 A.2d 135, 139–40 (1967) (absent clear legislative indication to the contrary,

“may” is presumed to apply in a permissive sense).

By contrast, this Court has also long held that the term “shall” in a statute indicates

the legislative intent that the statute be mandatory. See, e.g., 75-80 Properties, L.L.C., 470

Md. at 631–32, 236 A.3d 545, 564 (“The term ‘shall’ connotes that an action is mandatory,

not subject to discretion or satisfaction of further conditions.”); Perez v. State, 420 Md. 57,

63, 21 A.3d 1048, 1052 (2011) (“As this Court and the intermediate appellate court have

reiterated on numerous occasions, the word ‘shall’ indicates the intent that a provision is

mandatory.”) (citing State v. Green, 367 Md. 61, 82, 785 A.2d 1275, 1287 (2001)); Thanos

v. State, 332 Md. 511, 522, 632 A.2d 768, 773 (1993) (“When a legislative body commands

that something be done, using words such as ‘shall’ or ‘must,’ rather than ‘may’ or ‘should,’

we must assume, absent some evidence to the contrary, that it was serious and that it meant

for the thing to be done in the manner it directed.”); In re James S., 286 Md. 702, 706, 410

A.2d 586, 588 (1980) (“Unless the context otherwise indicates[,] the use of the word ‘shall’

(except in its future tense) indicates a mandatory intent.”) (citations omitted); Harvey v.

State, 51 Md. App. 113, 118–19, 441 A.2d 1094, 1097 (1982) (“Whenever the word ‘shall’

is used it is mandatory. Why else would this word be used? If the legislative body

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responsible for the enactment of the statute or rule meant ‘directory,’ we assume they

would say so.”).

Following this Court’s long history of interpreting the statutory term “may” as

discretionary, as opposed to the mandatory term “shall,” we conclude that the wrongful

detainer statute is permissive and not mandatory. The statute uses the permissive term

“may” to describe a wrongful detainer action—a “person claiming possession may make

complaint in writing to the District Court of the county in which the property is located[,]”

Real Prop. § 14-132(d) (emphasis added)—as opposed to the mandatory term “shall.”

Accordingly, the use of the permissive term “may” in the wrongful detainer statute

indicates that a wrongful detainer action is an option to pursue when attempting to remove

someone not legally on a property, but not the exclusive remedy.

Our analysis that the wrongful detainer statute is permissive is further bolstered by

comparing the wrongful detainer statute to another statute in the Real Property Article. The

Real Property Article discusses when a landlord can repossess a property for a tenant’s

failure to pay rent in § 8-401. That process is delineated in § 8-401(b)(1): “Whenever any

landlord shall desire to repossess any premises to which the landlord is entitled . . . the

landlord or the landlord’s duly qualified agent or attorney shall file . . . in the District Court

of the county wherein the property is situated[.]” (Emphasis added). When a landlord

seeks to regain possession of a property from a tenant for the tenant’s failure to pay rent,

the landlord is required to file an action in the District Court. The landlord does not have

the choice to seek repossession in either the circuit court or the District Court; Real Prop.

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§ 8-401(b)(1) requires the landlord to file in the District Court: the landlord shall file in the

District Court.4

The permissive language of the wrongful detainer statute suggests that a wrongful

detainer action in District Court is an option to pursue when attempting to remove someone

not legally on a property, but not the exclusive remedy. We are not persuaded that Valley

Mill was required to bring this action in the District Court as a wrongful detainer action.

Rather, Valley Mill had the choice to pursue a wrongful detainer action against Uthus in

the District Court or another legally available option.

In the instant case, Valley Mill pursued a trespass action in circuit court. The record

reflects that at one point, Valley Mill had pursued a wrongful detainer action against Uthus

4

We are unpersuaded by Uthus’ argument that interpreting the word may as

permissive would call into question other statutes with the same term. Specifically, Uthus

points to Real Prop. § 8-402.1 and § 8-402. Section 8-402.1(a)(1)(i) states: “Where an

unexpired lease for a stated term provides that the landlord may repossess the premises

prior to the expiration of the stated term if the tenant breaches the lease, the landlord may

make complaint in writing to the District Court of the county where the premises is located

if [.]” Section 8-402(b)(1)(i) states: “Where . . . the landlord shall desire to repossess the

property after the expiration of the term for which it was leased . . . the landlord may make

complaint in writing to the District Court of the county where the property is located.”

Uthus argues that these statutes represent the only way for a landlord to seek repossession

for a holdover tenant, and despite the fact that this is the only method for repossession from

a holdover tenant, the statute uses the term may. This argument is unconvincing. As

explained above, the term may is generally permissive. Moreover, these statutes deal with

landlord-tenant issues, which are exclusively under the jurisdiction of the District Court

under Cts. & Jud. Proc. § 4-401(4): “the District Court has exclusive original civil

jurisdiction in . . . an action involving landlord and tenant. . . .” Holdover tenant evictions

must be brought in District Court, and the term may can simply mean that the landlord has

the choice to pursue this action or not to pursue any action. However, these statutes do not

indicate that the term may in the wrongful detainer statute should be interpreted to be

mandatory.

16

in the District Court but later dismissed it during ongoing negotiations.5 Besides being a

viable alternative in this case, a circuit court trespass action also presented strategic

advantages to both parties. Valley Mill brought several additional claims against Uthus,

and Uthus engaged in extensive discovery which would not have been otherwise available

in District Court. See Md. Rule 3-711 (“[N]o pretrial discovery . . . shall be permitted in

. . . an action for . . . wrongful detainer[.]”).

In support of Uthus’ argument that Valley Mill was required to file a wrongful

detainer action in the District Court, Uthus directs us to this Court’s decision in Empire

Properties, LLC v. Hardy, 386 Md. 628, 873 A.2d 1187 (2005). However, as we explain

below, a close reading of Empire demonstrates that it comports with the long line of cases

of this Court that have interpreted the statutory term may to mean optional.

The question in Empire was whether a purchaser of property at a foreclosure sale

(Empire) pursued the correct legal proceedings to acquire possession of the property.

Maryland Rule 14-102(a) provided one clear method for Empire to obtain actual possession

of the property in circuit court: “Whenever the purchaser of an interest in real property at

a sale conducted pursuant to these Rules is entitled to possession, and the person in actual

possession fails or refuses to deliver possession, the purchaser may file a motion requesting

the court to enter a judgment awarding possession of the property.” 386 Md. at 634–35,

873 A.2d at 1191 (citing Md. Rule 14-102(a)). In the interests of time and money, Empire

We decline to conjecture whether Valley Mill’s potential wrongful detainer action

5

would be successful, but we do emphasize that wrongful detainer was a possibility.

17

attempted to acquire possession in the District Court through the wrongful detainer statute

at the time. 386 Md. at 635 n.2, 873 A.2d at 1191 n.2. In support of its position, Empire

highlighted Md. Rule 14-102(a)’s usage of the word may—“the purchaser or a successor

in interest who claims the right of immediate possession may file a motion for judgment

awarding possession of the property”—to argue that Md. Rule 14-102 was not the

exclusive method and that wrongful detainer in the District Court was a viable alternative.

This Court rejected that argument, explaining that the wrongful detainer statute

“primarily has effect in the context of a landlord-tenant relationship under the law.” 386

Md. at 639–40, 873 A.2d at 1194 (emphasis in original). Indeed, “the very existence of

[Md.] Rule 14-102, which speaks directly to the proper procedure an aggrieved purchaser

at a foreclosure sale can take in the [c]ircuit [c]ourt when ‘the person in actual possession

fails or refuses to deliver possession,’” makes this “even more obvious.” 386 Md. at 639–

40, 873 A.2d at 1194 (citing Md. Rule 14-102(a)).

This Court explained further by quoting from this Court’s decision in Laney v. State,

379 Md. 522, 842 A.2d 773 (2004): “Although this judicial process may be used to oust a

mortgagor who no longer is entitled to possession, the use of the term ‘may’ in [Md.] Rule

14-102(a) . . . reflects the fact that the ouster process is not mandatory to obtain possession

of the purchased property.” 386 Md. at 640, 873 A.2d at 1194 (quoting Laney v. State, 379

Md. 522, 541–43, 842 A.2d 773, 784–85 (2004)). This interpretation of the word may,

which referred to the availability (at the time) of alternative remedies outside of the judicial

process, did not help Empire’s case:

18

It is pellucid that the method for a purchaser at a foreclosure sale to acquire

actual possession from a holdover mortgagor prior to the approval of the

audit, the payment of the purchase price and the delivery of the conveyancing

documents, if the purchaser chooses to use the judicial process, is the method

provided for in Maryland Rule 14-102 and not that of § 8-402.4 of the Real

Property Article. We merely discussed in Laney (a criminal case addressing

the Fourth Amendment implications of whether a holdover mortgagor,

following a foreclosure, has a reasonable expectation of privacy in the

premises), that the use of the word “may” in the Rule indicates that, outside

of the judicial process, “peaceable” self-help remedies can be pursued in

order for a foreclosure sale purchaser to acquire actual possession. It does

not mean, as Empire suggests, that alternate judicial means are available in

the District Courts of this State wholly independent from Maryland Rule 14-

102. Although Empire may seek to gain possession of the purchased

property by filing a motion in the [c]ircuit [c]ourt under Maryland Rule 14-

102(a), it cannot under these circumstances seek the same result from the

District Court under § 8-402.4 of the Real Property Article.

Empire Properties, LLC, 386 Md. at 641, 873 A.2d at 1195 (emphasis and footnote

omitted). This Court concluded that Md. Rule 14-102 was the only method Empire could

pursue to acquire possession under the circumstances.

Uthus argues that Empire stands for the proposition that the word “may” can

effectively refer to a required course of action. However, at the time that Empire was

decided, self-help remedies for landlords were still legal. Our interpretation of may as non-

exclusive in Empire referred to the multiple legal options that were then available to

pursue: the judicial remedy under Md. Rule 14-102 and the otherwise legal remedy at the

time, although not a judicial remedy, of self-help.6 Empire does not stand for the

proposition that may refers to a mandatory option.

6

This Court, in Nickens v. Mount Vernon Realty Grp., LLC, 429 Md. 53, 62 54 A.3d

742, 747–48 (2012), upheld the common law usage of self-help evictions. Thereafter, the

General Assembly abrogated Nickens, enacting Real Prop. § 7-113 into law “[for] the

(continued . . .)

19

To summarize, the wrongful detainer statute, Real Prop. § 14-132(d), states that a

“person claiming possession may make complaint in writing to the District Court of the

county in which the property is located.” The permissive term may makes clear that

wrongful detainer is one of the legal actions available to pursue when attempting to remove

someone not legally on a property, but not the exclusive remedy. In the instant case, there

were multiple legal remedies available for Valley Mill to pursue in order to repossess the

apartment, i.e., wrongful detainer action in the District Court and common law trespass

action in circuit court.7 Because the wrongful detainer statute is a permissive statute and

(. . . continued)

purpose of prohibiting a party claiming the right to possession from taking possession or

threatening to take possession of residential property from a certain protected resident in a

certain manner[.]” 2013 Maryland Laws Ch. 514 (S.B. 642).

7

The enactment of the wrongful detainer statute does not by any means imply that

the General Assembly expressly intended to derogate the common law right to pursue a

trespass action. This Court has a long history of affirming the proposition that “statutes in

derogation of the common law are strictly construed, and it is not to be presumed that the

Legislature by creating statutory [claims] intended to make any alteration in the common

law other than what has been specified and plainly pronounced.” Breslin v. Powell, 421

Md. 266, 287, 26 A.3d 878, 891 (2011) (citations and quotation marks omitted); State, for

Use of Dunnigan v. Cobourn, 171 Md. 23, 187 A. 881, 882 (1936) (“It seems beyond

dispute that the right here asserted did not exist at common law, and that the statute which

confers the right, being in derogation of the common law, must be construed strictly.

Volume 2, Lewis’ Sutherland Statutory Construction, § 632; Demczuk v. Jenifer, 138 Md.

488, 114 A. 471 [(1921)]; Allen v. Seff, 160 Md. 240, 153 A. 54 [(1931)].”). See

generally Robinson v. State, 353 Md. 683, 728 A.2d 698 (1999) (discussing the proposition

that statutes in derogation of the common law are to be construed narrowly, so as to not

make any change in the common law beyond that which is expressly stated and necessary);

3 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutes and Statutory Construction

§ 61:1 (7th ed. 2017) (“A statute may take away a common law right, but courts presume

the legislature has no such purpose. If a common law right is to be taken away, it must be

noted clearly by the legislature.”).

20

not a mandatory statute, we conclude that Valley Mill was not required to pursue a

wrongful detainer action in District Court.8 Accordingly, Valley Mill was not required to

pursue a wrongful detainer action to remove Uthus from the apartment, and the District

Court would not have exclusive jurisdiction over this action under Cts. & Jud. Proc. § 4-

401(4) (“The District Court has exclusive original civil jurisdiction in . . . an action

involving . . . wrongful detainer.”).9

Trespass

The longstanding common law tort of trespass is generally defined as “an intentional

or negligent intrusion upon or to the possessory interest in property of another.” Litz v.

Maryland Dep’t of Env’t, 446 Md. 254, 276–77, 131 A.3d 923, 936 (2016) (internal

quotation marks and citation omitted). As the intermediate appellate court correctly

surmised, to prevail in a trespass action a “plaintiff must establish: (1) an interference with

a possessory interest in his property; (2) through the defendant’s physical act or force

8

There would be times, though, that the wrongful detainer statute would not be an

available remedy. The wrongful detainer statute contains a limitation that a wrongful

detainer action is not available when a “remedy is available under Title 8 of this article

[Landlord and Tenant]; or any other exclusive means to recover possession is provided by

statute or rule.” Real Prop. § 14-132(b)(2)–(3). This does not change our analysis in this

case, however, since common law trespass is not an “exclusive means to recover

possession.” Valley Mill still had the option whether to pursue a wrongful detainer action

in district court or a common law trespass action in circuit court.

9

Uthus argues that a person in actual possession “should not be vulnerable to

eviction at the whim of a landowner or employer without going through the statutorily

defined eviction process.” This argument fails to recognize that there is more than one

“statutorily defined” or common law process to remove a person from a property, and

nothing in our decision, or the Court of Special Appeals’ opinion, leaves people possessing

a property “at the whim of a landowner or employer” without sufficient legal process.

21

against that property; (3) which was executed without his consent.” Uthus v. Valley Mill

Camp, Inc., 243 Md. App. 539, 555, 221 A.3d 1040, 1049 (2019) (citations omitted). In

the instant case, all three elements are present.

The first element—interference with a possessory interest—requires Valley Mill to

have a possessory interest in the campground and Uthus to interfere with that possessory

interest. The undisputed facts indicate that Uthus interfered with Valley Mill’s possessory

interest in the campground by remaining in possession of his apartment after being told to

leave.

Valley Mill’s possessory interest in the campgrounds stems from its lease agreement

with Seneca Joint Venture; Seneca Joint Venture owns the campgrounds and leases the

property to Valley Mill. As noted above, a landlord-tenant relationship entitles the tenant

to the right of possession to the exclusion of the landlord, and the converse is also true: a

landlord has no right of immediate possession over a tenant legally in possession of a

property. Curtis, 427 Md. at 536, 50 A.3d at 564 (“Under elementary principles of real

property law, a tenant properly on the premises of a property has a right of possession as

against a landlord. It follows that a landlord—or a person who has succeeded to the

position of a landlord—would have no right of ‘immediate possession’ as against a tenant

legally in possession of the property under [the relevant statute].”). As the tenant of the

campgrounds, Valley Mill has the right of exclusive possession of the campgrounds, to the

exclusion of Seneca Joint Venture. This means that although Uthus was a partner of Seneca

Joint Venture, his status does not entitle him to possessory rights in the apartment on the

campgrounds. Rather, Valley Mill maintains a possessory interest in the campgrounds.

22

As for the interference part—interference with the possessory interest—it is

uncontroverted that Uthus remained in the apartment on the campgrounds after being asked

to leave and continued to occupy the premises following the termination of his

employment, thereby interfering with Valley Mill’s possessory interest. Thus, the first

element of trespass—interference with a possessory interest—is met.

The uncontroverted facts also meet the other elements of trespass. Uthus interfered

with Valley Mill’s possessory interest in the apartment by physically remaining there. The

record does not reflect that Valley Mill consented to Uthus remaining on the property.

In sum, Valley Mill maintained a possessory interest in the apartment. Uthus

interfered with that possessory interest by physically remaining on the property without

Valley Mill’s consent, thereby meeting all the elements of trespass.

CONCLUSION

Valley Mill’s common law trespass action against Uthus to recover possession of

the apartment was properly within the jurisdiction of the circuit court. While cases

presenting a “landlord and tenant, distraint, or wrongful detainer” issue, are exclusively in

the jurisdiction of the District Court under Cts. & Jud. Proc. § 4-401(4), none of these apply

here.

This is not a landlord-tenant dispute because Uthus was a licensee of Valley Mill

and not a tenant. Strong indicia that Uthus was not a tenant include the lack of rental

payments and exclusive possession. Additionally, Valley Mill was not required to file a

wrongful detainer action in the District Court, although it could have. The wrongful

detainer statute uses the term may which is permissive, so Valley Mill had the choice to

23

take legal action to remove Uthus from the campgrounds by either filing a wrongful

detainer action in District Court or a trespass action in circuit court. Ultimately, Valley

Mill sought repossession from Uthus via a common law trespass action in circuit court and

established the elements of trespass: intentional interference with the possessory interest

of another. Accordingly, we shall affirm.

JUDGMENT OF THE COURT OF

SPECIAL APPEALS IS AFFIRMED.

COSTS TO BE PAID BY

PETITIONER.

24