This is part two of a 6-part series on Washington’s adverse possession law. The first post discussed a recent case out of Division Three of Washington’s Court of Appeals, LeBleu v. Aalgaard, 193 Wash. App. 66, 78 (2016), which provided a comprehensive overview of the law, with a concurring opinion that noted the many standards applied over time and the need for the Legislature to take action.
A quick side note on Washington’s Court of Appeals, the intermediate level appeals court, is broken down into three divisions whose geographical jurisdiction may roughly be described as – Division One, King County north to Canada and east to the Cascades; Division Two, Pierce County to Oregon, east to the Cascades, plus the coastal counties – Pacific, Wahkiakum, Clallam, Grays Harbor, Jefferson, Kitsap, Mason ; Division Three covers all of the state east of the Cascades.
Under Washington case law, the adverse possession doctrine encompasses four elements: (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile. Gorman v. City of Woodinville, 175 Wn.2d 68, 71, 283 P.3d 1082 (2012).
This post will examine the third element – exclusive possession. The standard dictionary definition of “exclusive” is “excluding or not admitting others” or use “restricted or limited to a person or group.” In adverse possession law, exclusive possession is found by acts indicative of true ownership during the statutory period. To meet the “exclusive” element, the claimant’s possession need not be absolutely exclusive. Rather, the possession must be of a type expected of an owner under the circumstances. Harris v. Urell, 133 Wn. App. at 138 (2006).
The exclusive element is often in play when the disputed property is also used by the “true” or “titled” owner. Harris v. Urell is a representative case. Here, Harris used and maintained a gravel driveway on land titled in Mike and Jill Watts. Between 1988 and 1997, the Watts used part of the driveway after obtaining Harris’ permission. In 1997, the Watts conveyed their property to the Urells. In 2001, the Urells’ gave notice that the driveway was on their titled land and later place a barricade on a portion of the driveway. Harris then sued for adverse possession. Challenging the exclusive element of Harris’ claim, the Urells argued that Harris’ use of the disputed property was not exclusive because Harris’ northern neighbors occasionally entered the property to fell a tree or to walk across the property. The court dismissed this argument noting an occasional, transitory use by the true owner usually will not prevent ownership transfer by adverse possession if the adverse possessor permits the use as a “neighborly accommodation.”
Another case is Lilly v. Lynch, 88 Wn. App. 306; 945 P.2d 727 (1997), which dealt with two adjoining waterfront lots on Gig Harbor. The disputed strip was improved with a boat ramp on the Lynch lot, but which had been treated as part of the Lilly lot for at least 20 years. As found by the court, all parties believed the north wall of the ramp was the boundary line. The ramp was regularly used by Lynch’s predecessor’s in interest, with permission. Lilly, and their predecessor’s in interest, had also run part of the septic system underneath the ramp, maintained the ramp, and Lilly ultimately extended her deck over part of the ramp, and erected a fence along the ramp’s north wall.
In challenging the exclusive element, Lynch argued that their predecessors in interest had regularly used the boat ramp and had performed maintenance on it. This raised two questions, (1) whether Lynch’s and their predecessor in interest’s use of the boat ramp was more than “occasional” or “transitory,” and (2) whether Lilly and her predecessors acted as true owners would.
Lilly lost at the trial level, but on appeal, the case was sent back to the trail court as Lilly presented significant evidence to show that Lilly and her predecessors exercised dominion and control over the property and that any use by Lynch or their predecessors was with express or implied permission and on the lines of a neighborly accommodation.
A case where the adverse possessor did not prevail is ITT Rayonier v. Bell, 112 Wn.2d 754; 774 P.2d 6 (1989), another waterfront property case. ITT purchased the disputed property in 1947. Bell subsequently purchased a houseboat that was moored directly adjacent to the disputed property in 1972. The property in dispute is approximately one-half acre.
According to Bell, when he purchased the houseboat, it had been moored in the same location since approximately 1962. The houseboat was moored to the land initially via a cable, and subsequently via a rope tied to two trees. The record reveals that only the following structures have been on the dispute property for the full statutory period: a woodshed that existed prior to Bell’s purchase of the houseboat, a woodshed he began building in 1978, an abandoned sauna that has existed since 1973, and the remains of an outhouse built by Bell in 1972 that has occupied numerous sites on the property.
Testimony was also presented by the Klocks and Olesens who co-owned a houseboat that floated for approximately 20 years adjacent to Bell’s and the disputed property. Both testified that they used the disputed property and that Bell never attempted to exclude them from the property.
Holding that Bell failed to establish the exclusive possession element, the court found, Bell’s possession of the property is not of the type one would expect of an owner. The evidence shows that Klock and Olesen moored their houseboat near the same property for a longer period than Bell. During this period, they used the property with Bell. Bell’s acquiescence in their use of the land cannot be described to be simply the attitude of a good neighbor. It shows, rather, there was a shared occupation of land.
The exclusive possession test was succinctly summarized in ITT as the “ultimate test is the exercise of dominion over the land in a manner consistent with actions a true owner would take.”
This blog post is offered for general information and educational purposes only. It is not offered as legal advice and does not constitute legal advice or opinion. Although I intend to keep this information current, I do not promise or guarantee that the information is correct, complete, or up-to date. You should not act or reply upon the information in this post without seeking the advice of an attorney.