A person may gain title to property via “adverse possession.” The basic concept is that if someone (a possessor) has open, notoriously and actually “possessed” a piece of property for a continuous period of 10 years, the property becomes the posessor’s, even if not purchased or gifted or otherwise transferred by the original and true property owner.
A. The Washington State legal requirements for adverse possession are:
(1) Open and Notorious Possession
Is the possessor using the property in a way that the usual owner would make use of the land?
Is the adverse possessor’s occupation sufficiently apparent so that it puts the usual owner on notice of his use of the land?
(2) Actual and Exclusive Possession
Is the adverse possessor sharing the land with the true owner or the public at large?
(3) Continuous Possession
Is the adverse possessor’s use and possession continuous for 10 years or more?
Did the adverse possessor’s predecessor in interest likewise use and possess the same land? (If so, you may be able to “tack on” the years that the predecessor used/possessed the land with your own time).
(4) Hostile Claim of Right
Is the adverse possessor using the land with the owner’s permission? (If so, there is no hostility, and the land cannot be adversely possessed).
(5) Statutory Period — Continuous Possession for 10 years
B. How Does the Law Treat Fences?
Often land is acquired via adverse possession because a fence was installed on or near a boundary line. The courts will often allow the fence to designate the “new” boundary line, even if it does not reflect the actual surveyed boundary line if: (a) there was uncertainty at the time the fence was installed as to the true line; (b) the fence/line was established with agreement between the neighboring property owners; and (c) there has been lengthy acquiescence to the fence and agreed line by the original owners and/or their successors in interest.
However, the existence of a fence will not alone establish title to property by adverse possession. The courts will consider whether the fence was an assertion of ownership or whether it existed merely for convenience.
C. What If I Am Attempting to Establish Title to Land Via the Doctrine of Adverse Possession or Am Opposing the Claim?
You should seek competent legal counsel. The appropriate action at law is to initiate a complaint to quiet title. This asks the Court to make a determination of title to the land by considering whether the elements of adverse possession were or were not established.
If you are defending a claim of title by adverse possession, your claims may be ejectment, trespass and/or injunctive relief. Both injunctive relief and damages may be available as a remedy.
If you are a claimant, a lis pendens may be recorded at the same time to protect adverse possessor’s claims against bona fide purchasers.
Adverse possession cases are mixed cases of fact and law, involving a case-by-case determination based on the unique facts of the case.
DISCLAIMER: This Article is not intended as legal advice. It is merely purposed to provide an overview of a particular legal issue. This information should not be relied upon nor serve as a substitute for legal advice. You should seek competent legal counsel for advisement for any of the issues raised herein.
