You are walking a potential purchase – it is an acreage lot and you notice that the boundary lines of the yards of adjoining property owners are uneven, and that their boundary with the parcel that you are considering are composed of fences, gardens, and grass fields. Immediately, you sense that there might be a boundary dispute question.
Do you reject feasiblity?
This is a common scenario faced by developers and consumers – has an adjoining landowner, a neighbor, acquired rights to a portion of the property that you are thinking of buying by adverse possession.
Adverse possession is one of the most commonly used arguments in boundary disputes to assert that an adjoining property owner has acquired title to a disputed portion of property.
In Washington State, to establish a claim of adverse possession, a party must show that their use of the disputed property has been: (1) exclusive; (2) uninterrupted, (3) open and notorious; and (4) hostile for a period of years – generally 10 years. What these tests boil down to is “has the claimant teated the property as an owner would treat it?” The ultimate question comes down to a question of fact – how has the claimant used the property? When answering this question, you have to look at the property and ask how would this parcel normally or usually be used by its owner, which can differ when going form acreage to developed lots.
Examples of use that Washington Courts have found to establish adverse possession are: erection of a fence; tearing down a fence and planting grass; cutting grass up to a line; constructing decks; and maintaining flower beds.
Actions of adjoining property owners that have not established adverse possession include: cutting grass alone, or the existence of an old dilapidated fence and nothing more.
Turning to the four part test, the first and last element, “Exclusivity” and “hostility” are essentially two sides of the same coin. Both generally mean that the claimant must treat the property as its owner would treat it. Thus, exclusive doesn’t mean that no one else may use the property, only that the claimant’s use must correspond with how an owner would use the property. To establish this element, the claimant must show that their use matches how a typical owner would use the property.
“Hostility” while similar to “exclusive” has been the one test that has created the most confusion in adverse possession law. Hostility means that the claimant must treat the property in the same manner as its owner would treat it – nothing more. The test and the way that an owner would treat property naturally differs with the property – think of forested acreage property compared to a city lot. As an example, with a forested parcel, the claimant may not object to a hunter coming on the property, whereas the claimant of a portion of a city lot would object to most anyone coming onto “their” property.
Similarly with “exclusive” and “hostile” is “open and notorious.” What “open and notorious” is getting at is the same thing – how would an owner use the property? To succeed with an adverse possession claim, the claimant’s use of the property cannot be secretive. Nor must the claimant take special action to publish their action. Again, what is required is that they use the property as its owner would. It should be clear to anyone and everyone in the area that the claimant is using and treating the property as if they owned it. Again, the use of the claimant must correspond to the type of the property.
The third element is that the possession be uninterrupted – generally uninterrupted for 10 years. A key point to note is that successive possessors of the subject property can add or “tack” on the time of the prior owner’s period of possession. What this means is that if a claimant is the third owner of a lot and the two prior owners of the lot treated the questionable property as their property for 7 years, the claimant may add these 7 years to the time that they have used the questionable property in an effort to satisfy the 10 year requirement.
When looking at a potential purchase, a buyer is well advised to walk the property and talk to neighbors – something every buyer should do, and to keep adverse possession in mind as any claim, no matter how small, may diminish a parcel and how it may be used.
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-todate. You should not act or reply upon the information in this post without seeking the advice of an attorney.