The Fundamentals of Adverse Possession in the State of Washington

Defining Adverse Possession

Adverse possession is not something you hear every day, unless you’re in the business of real estate law. But it is defined by Cornell Law School as: "[A]n exception to the general rule that ownership of property cannot be acquired without a writing . . . provides that if an owner of land fails to eject a trespasser within a certain period of time specified by the relevant statute of limitations, the owner will lose his interest in the property." A good example of how adverse possession might be used is, say, if a person wanted to acquire the land their house sits on because they hadn’t purchased it with the original home. They may have been using the land as part of their yard for years without anyone knowing it was an actual plot of land separate from their own. In that case, they could acquire it through adverse possession. Adverse possession is often cited in arguments over boundary lines. If a neighbor puts up a fence that is outside that of their property line, the fence could be considered encroaching if it doesn’t conform to the actual property line. However, if the person discovers the fence has been there for many more years than that of the applicable statute of limitations for what would normally be considered illegal possession or use of someone else’s property, then occupancy is said to be "open and notorious." On the flip side, adverse possession laws can also protect someone from having to give up a portion of the land to their neighbor. In fact, adverse possession laws exist mostly for the protection of the owner of the property who has been keeping their land as it is for far too long, even if a mistake has been made about an adjacent property line . Adverse possession law breaks down into a framework of three parts. One, the person living on the land must be claiming that it was their own for at least 10 years. Two, they must have been using and controlling the property for that time period, which means that they should have had an impact on it in a way that protects them from a neighbor or landowner taking it for their own. Three, their possession of the property must be open and notorious, as previously mentioned. All of these things considered, as long as it is within a reasonable timeframe and the person does not try to hide their mistakes regarding that property, adverse possession laws are there to protect the innocent parties in the event of an issue with property lines between two people. However, given how widely these laws can vary from state to state, you cannot afford to assume that your state’s guidelines are going to be the same as those of the majority of the country. There are exceptions to this general definition, and each state is different. In Washington State, for instance, there are two remedies for adverse possession – one for public land and one for private land. In Washington, just like in most states, adverse possession is not something that can be done overnight. The time to establish title is about 10 years in Washington, so even if you are taking someone’s property, you must be consistent, open and notorious with it for 10 years. You also have to be paying the taxes associated with the property.

Essential Elements of Adverse Possession in Washington State

For adverse possession to apply in Washington, a number of strict conditions must be satisfied. The possession must be continuous and uninterrupted for a period of 10 years, as provided by RCW 7.28.070. It must also be open, notorious, visible, and hostile to the legal possessor; exclusive (in the sense of being uninterrupted by anyone who would have a legal right to be there); and it must be under a claim of right or color of title. If the possessor is claiming a portion of the land that is covered by color of title, the possession does not need to be exclusive or continuous. The possessor simply needs to meet the conditions of open and notorious possession, and he or she must have entered "under, through, or by virtue of some written instrument, judgment, or decree." In either case, excessive use of the property, or any action that interrupts or changes the nature of the land, might not constitute adverse possession.

Duration of Adverse Possession

The period required for adverse possession in Washington State is the same as the period for the statute of limitations for recovery of land under Revised Code of Washington 7.28.083. That period is 10 years.
RCW 7.28.083 provides:
No person may recover damages for the taking, detaining, or injuring of property, real or personal, unless the action is commenced within ten years from the date of the act complained of. The period in which a cause of action arises and upon which the statute begins to run is problematic in an adverse possession context. There has been litigation in Washington State about what acts trigger the statute of limitations running, but in the absence of testimony of adverse use or claim of title to the property, it appears the statute of limitations will not run. In other words, if there is no testimony from a landowner that he/she was aware of trespassers on the property, the trespassers will be protected from eviction. Without notice, the statute of limitations should not commence running. See RCW 7.28.080. It’s commonly known that possession is "adverse" when it is done with the intent for it to be adverse and without the knowledge of the landowner. As such, if the landowner knew of the trespassers, the statutory period of 10 years will have commenced. If the trespassers only used the property occasionally, it’s probably safe to say the statute of limitations will not run on the landowner. Adverse possession requires all five of the listed elements to be met, and, depending on the case, different statutes of limitations may present issues on occasion. For instance, the statute of limitations for title by quiet claim deed is 10 years. An adverse possessor has exclusive and uninterrupted possession for the statutory period of ten years, but the first element, open, notorious, hostile, must be proven. There is no definitive way to show this; simply going forward without leaving any paper trail will not suffice.

Claiming Adverse Possession In Washington State

Adverse possession claims are decided through the courts. The law in Washington is that individuals claiming an adverse possession must file a lawsuit against a landowner and provide facts showing that the individual claiming the adverse possession has had possession of – and treated as their own – the disputed property for the requisite period. The landowner may file a counterclaim against the individual claiming the adverse possession, and the presiding judge will determine the merits of both claims.
Like any other lawsuit, an adverse possession lawsuit requires that the claimant and the landowner provide evidence – that is, proof – that their side of the case is the correct one. In an adverse possession case, the type of evidence provided will depend on the facts of the case, but essentially, the claimant will be required to provide sufficient evidence to prove all of the necessary elements of an adverse possession claim – that is, bona fide use, continuous use, hostile use, open and notorious use, and uninterrupted use – while the landowner will have to prove elements of his or her own claim – that is, that the individual claiming an adverse possession has not satisfied all of the elements of an adverse possession claim (if a trespass claim) or that if he or she did satisfy all of the elements of an adverse possession claim, proper notice was given to the individual, cancelling out that claim.
In the end, the presiding judge will decide whether or not the individual claiming an adverse possession has satisfied the elements of an adverse possession claim under applicable Washington state law. If so, typically, the judge will issue a legal judgment confirming the adverse possession claim or will enter another type of judgment issuing an order quieting title in favor of the adverse possessor. If, however, the elements of an adverse possession claim have not been satisfied, the presiding judge will dismiss the adverse possession claim – meaning that the claimant filing the lawsuit (and the actual landowner) will still be owners of their respective properties.
Alternatively, if there is a trespass claim in the adverse possession lawsuit filed, the presiding judge may acknowledge that the landowner’s interests were interfered with by the individual claiming an adverse possession, and may instead award the landowner damages, which are a sum of money sufficient to reimburse the landowner for the injuries suffered. Though rare, it is also possible for the presiding judge to award an injunction, which requires the individual claiming an adverse possession to stop the conduct that is interfering with the landowner’s interests. If the presiding judge issues an injunction award, it is possible that the adverse possessor could then subsequently cure the trespass, and later re-file a lawsuit against the landowner to recognize the claimed adverse possession.
The process is arduous and involved for both the person who claims an adverse possession and the landowner. It is important for both parties to an adverse possession claim to be represented by qualified Washington state real estate attorneys who understand all aspects of property law and can help protect their client’s interests.

Ways To Defend Against An Adverse Possession Claim

Defending against adverse possession or prescriptive easement claims involves two steps. The first is whether the elements of the adverse possession claim exist, and the second is whether you have any counter arguments you can make to get the court to rule against the claimant.
Two common defenses include consent and hardship. Consent is fairly straight forward; it is an affirmative defense and means that you have given permission to the person to be on your property. Courts are more likely to find in the homeowner’s favor here than anywhere else in an adverse possession case . However, generally speaking, consent cannot be given after the adverse possession case starts – in other words, you can’t consent to something after the lawsuit starts to avoid having the property taken from you.
Hardship claims occur when the person who is opposing a claim of adverse possession made improvements and/or invested money into the property that would be wasted if the claim were successful. It might not have been reasonable for the claimant to believe that he could take possession of the property (such as if the deed is clearly in the claimant’s name), but the hardship is sufficient to and the defense can still be used to defeat the adverse possession claim.

How Does Adverse Possession Affect Real Estate Transactions

The impact of an adverse possession claim on real estate transactions cannot be understated. With Washington State’s once liberal adverse possession laws, many properties became or remained "ripe" for a claim of ownership by a longtime possessor. Although the 2011 change to the Washington adverse possession statute was a step in the right direction, it may not be enough. A property owner looking to sell his or her property and title company reviewing title information must be aware of the risks involved, and may need to be exercised in obtaining legal assistance in the sale of the property. For the property owner, the risk that an adverse possessor has gained an ownership interest in the property can often be determined at the time title is reviewed prior to any transaction. For example, a one-time licensee doing repair work around the property or a tenant holding over past the expiration of the lease may provide enough information for the reader to determine whether an adverse possession claim could adversely affect the property owner’s ability to sell the property. In addition, any internal records the property owner may have in the form of prior title work or internal reports used to make an informed decision as to whether to sell the property will be crucial in evaluating the risks, and opportunities of selling a property with adverse possessors or adverse possession risks.
For the real estate agent, a careful review of the property to determine whether a potential adverse possession claim exists, or review in the case of a commercial transaction, will assist the property owner in determining whether to sell a property of if a legal opinion and title search is needed prior to a transaction.

Court Cases and Real Examples

Wenner v. Rotary, 60 Wash. App. 635 (1991)-This case involved two adjacent property owners, Wenner and Rotary, who shared a mutual driveway for access. Rotary’s deed contained an express easement in favor of Wenner; however, Rotary’s use of the drive did not correspond with the easement making the matter complicated. At first Wenner paid assessment fees associated with the driveway, but later stopped because Wenner was not present at the time assessments were paid and was unable to pay. Even after Wenner stopped paying assessment fees, Wenner never obstructed Rotary’s use and kept the driveway clear of debris and obstructions. The Court ruled that Rotary, along with Wenner’s use of the driveway, was permissive under the easement and did not effectively convert the easement into a claim of right. The Court denied the adverse possession claim and awarded Wenner her full use and rights in the easement.
Herlitz v. Planning Commission, 135 Wash. 2d 379 (June 23, 1998)-(The question of how open and notorious possession must be came up in this case. In Herlitz, the Court relied on the "due owner" doctrine (first applied in McPhee v. Hill, 63 Wash. 38 (1901)) in confirming that adverse possession is a form of § 1983 depravation. The Court ruled that a requested rezone action was a five year statute of limitations item.
Rogers v. Monroe School District., 156 Wn.2d 196 (June 17, 2006)-(The question of a corporate landowner’s possession was at issue in this case. A district sought review of a court of appeals holding that an adjacent land owner acquired a deeded right of way over an unused county road under RCW 7.28.080 and 7.28.120 after using the road for the necessary period of time. The Court ruled that where a landowner fails to use property CHO does not require the prior owner to evict the trespasser to regain possession unless RCW 7.28.080(2) applies. The Court also held where the real property interest of a city or school district is unknown the prescriptive period begins on the date of the governmental body’s use, not the date of the governing body’s awareness that the establishment of the use may be challenged as a violation of the governmental body’s property rights.

The Future Of Adverse Possession In Washington State

As we look to the future, it is clear that the doctrine of adverse possession understudies the pressing need for reform and clarification. American jurisprudence is oft criticized for its tendency to rigidify in the face of changing social customs. As society continues to evolve, regulatory authorities have an obligation to adapt to protect the property rights of all citizens. This is especially important when speaking generally about private land owners and minorities. Washington will in all likelihood lead the way to clarity and recalibration of adverse possession principles and regulations.
As evident in both case law and the DNR rulings, there is great risk in continuing to allow adverse possession claims . This risk is accentuated when you consider the risk for frivolous claims made under the specter of frivolity or ignorance. Land use and unlawful appropriation are very mixed bag. This is one of the reasons adverse possession must be claimed with the utmost integrity and the full intent to settle disputes and quiet title.
Given the frequent calls for change currently being advanced, it is unlikely that we will endure any further long periods without legislative clarity on the issue. If legislation is adopted, property suitors can be certain to see changes on the level of burden of proof, evidentiary standards, and potential restrictions to property tax relief through adverse possession claims.