What is Adverse Possession?
Adverse possession is a strange quirk of property law dating back to Roman times. You may know it by the colloquial term, “squatter’s rights.” Basically, if someone has had possession of a piece of real property for a long time without the permission of the legal owner, then she may be entitled to ownership of the property under adverse possession.
Adverse possession is a common occurrence in boundary line disputes. If you think your neighbor might be encroaching on your land (or visa versa), you may also want to check out our article on boundary line disputes.
Elements of Adverse Possession
Under Washington State case law and statutes, an adverse possessor can usually only claim a right to the property after 10 years. If the adverse possessor has record title, or has continuously paid the property taxes and has color of title (typically in the form of a flawed paper title that does not show up on the record), then the possessory period is only 7 years. Along with possession for the required duration, an adverse possessor must generally satisfy all of the following 5 requirements:
- Actual possession: The adverse possessor must be in true possession of the land such that the title-holder could have pursued an action for trespass.
- Exclusive possession: The adverse possessor’s possession of the property is uninterrupted by the true owner. If the true owner ousts the adverse possessor, then that restarts clock, even if the adverse possessor moves right back in the next day.
- Continuous use: The adverse possessor must have used the property as an owner would have for a continuous period of time—usually 10 years. If the property is a normal single-family dwelling, then the adverse possessor must have used that property as a primary residence for the whole duration. Vacations or trips to the hospital would probably not interrupt the continuity of use. However, if, for example, the property were a remote hunting cabin in the woods that would not normally be used as a primary residence, the adverse possessor may be able to claim continuous use if she has used the cabin for hunting trips each year for the last 10 years.
- Open and notorious use: If the owner has actual knowledge of the use, then this element is met. Otherwise, this element is satisfied by the kind of use that would put a reasonable person on notice. For example, if the adverse possessor has put up a fence, closed a gate, built a building, or planted crops, then the adverse possessor’s use would be deemed “open and notorious” by the courts.
- Hostile: This element does not require antagonism of any kind. Rather, the hostility requirement is met when the adverse possessor uses the true owner’s land without permission, in a manner inconsistent with the true owner’s rights. Occupying land under a good faith, mistaken belief that it is yours would still be considered “hostile” under Washington law.
Defending Against an Adverse Possession Claim
There are a number of things that can stop adverse possession in its tracks:
- Negating one of the above elements: If the rightful property owner can show that the adverse possessor has not satisfied one of the above elements, then the adverse possession claim will fail.
- Government property: You cannot adversely possess government land.
- Tolling: If the rightful owner has died, is disabled, is absent from the state, is in the military, or is in prison when the adverse possessor moves onto the property, then the 7 or 10-year clock may not begin to run. For example, if a squatter has been in possession for 12 years, but the rightful owner was serving abroad in the military when the adverse possessor entered the property and did not return for 3 years after that date, then for the purposes of determining adverse possession, those 3 years will be subtracted from the 12 years the adverse possessor has been on the property. Thus, the adverse possessor will be deemed to have only possessed the property for 9 years, which is not long enough to claim titled under adverse possession (without color of title or paying the property taxes).
- Permission: If the rightful owner has given the adverse possessor permission to occupy the property, that will usually spoil the element of “hostility” because, if he has permission, the adverse possessor’s use will not be hostile to the rights of the owner.
The Policy Rationale for Adverse Possession
Adverse possession is sometimes criticized as legalized theft. And this critique has some merit to it; occasionally adverse possessors move onto a property in the hopes of squatting for long enough to claim legal title. The law protects this theft if it goes unnoticed for long enough, and that seems wrong.
More often though, the adverse possessor has been using the property in good faith under a mistaken belief that he or she owns it. For instance, if your neighbor accidentally built a fence 2 feet over the property line onto your property 10+ years ago, he probably has legal title to that property under adverse possession. Likewise, if you purchased a property 7+ years ago in good faith from a fraudulent seller who gave you paper title, you may have clear title to that property now via adverse possession.
In this way, adverse possession can operate to smooth out long-overlooked mistakes by giving title to the party that has been putting a property to good use for a long period of time. If the true owner does not notice or miss the use of his property for 7 or 10 straight years, then perhaps it isn’t so unfair to give legal title to the adverse possessor.
Contact Our Law Firm for More Information Regarding Adverse Possession
Regardless of the justness of adverse possession, it’s here to stay. If you believe that someone may have a claim to your land via adverse possession, you should contact a land use or real estate attorney as soon as possible. Contact us online or call 253.620.6666 to speak with us today.