WA real estate laws on adverse possession

There are a number of ways to look at this...I don't believe that adverse possession is really one of the more rational courses of action...mainly because you already partially own the property and because you built your fence with the permission of the other owners (via the approval by the board). It sounds like the Association needs to find out how many issues they currently have and then decide if any of them are worth fighting over - 1 foot into the common area should not be a problem - but four feet may be. Getting you to remove the fence could be difficult...on the one hand they can take away their permission, and on the other hand you relied on their decision to let you build the fence there. If I was advising the HOA I would tell them that they need to improve their permitting process to include a survey of the area to be fenced, and that they need to have a better system for dealing with their current problems - possibly having signed agreements with each owner who builds a fence.

Adverse possession law can be tricky and is fact-intensive. In Washington, generally if your possession of the land of another is open, notorious, and hostile for ten years or longer, you may gain title through adverse possession; per RCW 7.28.200, you may get title quieted in your favor if you do the same and pay taxes for 7 consecutive years. There are some great cases debating and describing what it means to openly, notoriously and hostilely possess.

However, I do not see how you could possibly adversely possess common area land even if it had been ten years because of another provision, RCW 7.28.240. In a nutshell, this says that joint tenants or tenants in common can't adversely possess against other co-owners unless they can show evidence of having denied other owners right to use the land. Interesting, really, but I think there would be a solid argument that common land would put you within this provision.

Even if not, the Assn's assertion of its right to the land now, prior to ten year mark, means you haven't even met that key deadline.

But just because in all likelihood would not prevail in an adverse possession claim against the Assn does not mean that you have no relief as to the current President's demands and assertions. First, on what does he base his claim that you, and presumably any number of other owners, are encroaching? Did he recently complete a survey? Even if that survey shows encroachment, you would have a very good argument that if they gave their stamp of approval 8 years ago, they waived any argument now as to the location of your fence. Let's not forget, either, that he is charged with representing you as well as any other owners who are or are not encroaching; he can't selectively represent members. If you wanted to really play hardball, and I would advise that only as a last course of action, offer to have him pay for the cost of relocation of the fence (of course you as a member would bear part of the cost of that). Are you on good terms with other board members? Is it possible to contact one of them and discuss, as amicably as possible, the situation, maybe as a group, e.g., you and other owners also told they are encroaching. In terms of legal relief, there is a plethora of possibilities that might be explored. For example, there are many kinds of easements, prescriptive, necessity, and the like, and possibly an easement could be drawn between the Assn and each homeowner with an encroaching fence. Possibly a license could be drafted permitting you to have your fence extended to the common area and indemnifyiing the Assn from any liability on that portion of common ground. Bottom line: "common ground" when dealing with a group of which you are a member, should mean striving for amicable solutions and avoiding inflammatory actions and words. This is something the President of the Assn would be wise to remember also. Good luck!

I would only add that you can't claim adverse possession her because the HOA gave you permission. This eliminates the hostility element and you must fulfill all the elements of adverse possession to be successful under that doctrine. However, contract law has a plethora of remedies for cases such as yours.

Consider alternative dispute resolutions like arbitration and mediation too, as they are less costly and adversarial than bringing suit. And they get resolved sooner.