Adverse Possession Lawsuits: Washington State
For many years, much of my practice has involved advising clients in neighbor disputes. These disputes have involved boundary issues, trespassing and damage claims, restrictions to views, and blocking of easements. While timber trespass (cutting down a neighbor’s tree) cases can be contentious and emotional, boundary disputes usually are the most contentious.
The purpose of this guide is to give you a brief overview of the law of boundaries and the general procedure for resolving boundary disputes. Please be aware that every case is different and resolving disputes between neighbors can be extremely difficult.
The most basic definition of adverse possession is this: using another’s property as an owner would use it. The legal definition (and the elements that must be proven should there be a trial) is this: a trespasser is entitled to legal ownership of property if his or her occupation of the property is hostile, actual, open and notorious, exclusive and continuous for ten years.
While the legal definition requires a “hostile" use of the property, “hostility" is not defined as one would think. It merely requires that an adverse possessor use the land of another as a true owner would use the land. Therefore, even if one mistakenly believes he is on his own land, the use of another’s property can be “hostile" under adverse possession.
The requirement that the use be “open and notorious" means that the adverse possessor's use is obvious to anyone. The typical case would be a fence enclosing a portion of property belonging to another. The more difficult case would be a line of “boundary trees" planted by an adverse possessor.
An adverse possessor’s use must be “exclusive" and “continuous." The adverse possessor cannot share possession with others. The use must also be continuous. That means that the adverse possessor cannot use the land for a period of time, abandon the land and then return and pick up where he left off.
Once the elements are met, ownership to the property passes to the adverse possessor. The adversely possessed property can be passed on to subsequent owners of the property. There will not be a record of the title passing until the adverse possessor files a lawsuit (or defends against a lawsuit and asserts a defense of adverse possession) and a judgment is entered confirming the claim. That judgment would then need to be recorded.
While these elements are easily recited and many people will announce “ah ha! I have adversely possessed the land, it is mine!" The courts are littered with cases where “clear cases" of adverse possession were denied. Adverse possessors have the burden of proof. That means it is their obligation to present evidence sufficient to convince the judge that the elements of adverse possession are present. If any element is not present, the claim will be denied.
Because land is valuable, neighbors will often vigorously defend against claims of adverse possession. In addition to attacking the adverse possessor’s claims, they may also assert several defenses. For example, they may claim that the adverse possession was not adverse because they had given permission to use the land.
Finally, in Washington State the parties in an adverse possession case do not have a right to claim attorneys fees from the opposing party, even if they are successful. What this means is that, even if you are successful in your claim, you will not be entitled to award of attorneys fees against your neighbor. Likewise, they will not have a right to claim an award for their attorneys fees should you succeed.
If your boundary issue cannot be resolved through negotiation, it may be necessary to file a lawsuit. If your neighbor has already filed a lawsuit then it will be necessary to respond.
The purpose of this section is to provide a general outline of a civil lawsuit. It is important to remember that 95% of all cases settle prior to trial. Cases can settle at any time. When to make offers or to engage in negotiations can be very fact specific. Obviously, if a case can be resolved quickly it will result in fewer expenses.
Before filing a lawsuit (or answering one that has been filed) certain preliminary matters will need to be investigated.
First, there will need to be a determination of who owns what. Normally, the names of the individuals and other entities that own or have an interest in the disputed property can be ascertained by reviewing the real property title records. This is usually done by a title company. In addition, any existing surveys will need to be identified, located and reviewed. Finally, documents and photographs that concern the property should be identified, located and reviewed.
Preparing a timeline that shows what happened and when will also help. The timeline will be reviewed and updated as the matter progresses.
Filing a Complaint or Answer
After the initial investigation, a complaint or answer will be prepared and filed. These are the initial pleadings (documents) in a lawsuit. They are not detailed statements of all the evidence for or against a particular claim, but rather a general statement of the basis for your claims or defenses.
After the initial pleadings are filed, there is a period called “discovery." This is the longest period in a civil matter and can be the most expensive. Discovery is that period of time where both sides attempt to gain information about the other side’s claims and defenses. There are several ways this is done. Informal interviews with witnesses, formal interviews with witnesses and parties (called depositions), interrogatories (written questions to the opposing side), site visits and, if necessary, consultations with experts.
Pretrial Motions and Mediation
After some discovery has taken place, there might be an opportunity to file a motion for summary judgment. A motion is a written request to the court. A motion for a summary judgment involves setting forth the facts of the case, researching the law applicable to those facts and presenting this to a judge. The opposing side is given an opportunity to defend the motion. While there is oral argument before a judge, there is not testimony.
Summary judgments can be expensive to prepare and argue. However, if they are successful, it can avoid the need for a trial.
Mediation is a formal attempt to settle a case. All cases in King County (and most cases in other counties) should, at some point, have a mediation session. Mediations are facilitated by professional mediators. Both sides will agree on a particular mediator and will share the costs of the mediator. The mediator will then work with the parties and their lawyers in an attempt to get them to come to some agreement. The process can be long, most often lasting at least a full day.
While mediations are expensive, if they are successful the parties can avoid a trial. In addition, mediations and a mediated settlement allow the parties to design a resolution to their dispute. Being able to keep some control over the process can be a real positive in neighbor disputes.
Pretrial and Trial
If a matter has not been resolved through either a pretrial motion, negotiation, or mediation, there will need to be a trial. Pretrial preparation consists of many things. Witnesses will need to be interviewed and prepared for trial. Exhibits reviewed and their admissibility at trial verified (or opposed if by the other party). A trial brief setting forth the facts, witnesses and legal theories will need to be prepared and presented to the Court.
In addition to preparing your case, it will be necessary to review and be prepared to rebut the opposing side’s case. This may involve reviewing deposition testimony and any declarations that had been filed in the case.
Finally, there will need to be some thought about the possibility of appeal. This may involve laying the foundation necessary to appeal an adverse ruling or presenting a case in such a way that will make appeal for the opposing side more difficult.
Emotional and Financial Costs
Litigation is not fun nor should it be taken lightly. The financial costs can be great. If a matter is not resolved quickly, the costs could quickly escalate into the thousands of dollars. Rarely are these costs recovered from an opposing side.
Throughout the process it is important to evaluate your goals and compare those goals with the costs that you are incurring. I am always available to discuss these issues with you. If at any time you believe the costs of proceeding do not justify the goals (or the risks of not reaching those goals are becoming too great) then we should have a frank and clear discussion about whether to proceed.
In addition to the financial costs, litigation can be very emotional. While it is impossible to predict what emotional costs you might incur, it can be assumed that throughout the process you will, at times, feel incredibly strong emotions of anger, hurt, sadness and fear. For some people, these emotional costs are greater than any financial costs that they might incur.
As with the financial costs, I am also available and need to hear from you when the emotional costs of the matter are weighing on you. While I am not a counselor, I may be able to help alleviate some of your concerns. Especially if those concerns are being triggered by misperceptions of the litigation process.
I have been handling neighbor disputes for many years. Some of the disputes are resolved quickly; others have gone all the way through trial and to the Court of Appeals.