Written by attorney Matthew F. Davis

Important Changes to Washington Adverse Possession Law

As a real estate attorney, I am always surprised that most people have heard of adverse possession. Adverse possession is a very old rule that someone who uses another person's property as the owner for a long enough period will gain actual ownership through use alone.

Courts state the rule as requiring possession for ten consecutive years that is: 1) exclusive, 2) actual and uninterrupted, 3) open and notorious and 4) hostile and under a claim of right made in good faith. In practice, these elements do not have their ordinary meaning. To obtain property by adverse possession, a person must use it as the owner would to the exclusion of others for ten years. If the property is sold during the ten year period, and the new owner continues the use, he gets the benefit of the seller's use. This is called tacking.

A typical example of adverse possession would be a fence that was installed two feet into the neighbor's property. If the fence remains in place for ten consecutive years, the owner of the property would have a very strong case for ownership of the neighbor's land that was enclosed by the fence.

Adverse possession developed in very different times. The idea was that if the true owner of the property did not put it to use, and someone else did, that person should be rewarded. But the idea was the all land shuold be fully used. Today, of course, a lot of land is preserved in its natural state. In addition, people today are less aware of their boundaries than in the past. Most buyers do npt have a survey when they purchase property and just assume that the boundaries are consistent with the use of the property.

Bills have been introduced in the Legislature over the years to abolish adverse possession. Many people think that it is unfair for one person to simply take another's property without paying for it. This is particularly true when the adverse possessor acts intentionally. Those bills have gone nowhere in the Legislature.

However, in 2011, the Legislature did make some important changes to adverse possession law.

First, a party who succeeds in an adverse possession claim may be required to reimburse the record owner for propert taxes. This is a new requirement.

Second, the court has discretion to award attorney fees to the prevailing party in adverse possession cases. This also is a change from established law.

We do not have enough experience under the new law yet to have a good idea about how judges will implement it. It seems pretty clear that people who successfully claim adverse possession will have to pay some taxes, but that will not approach the value of the property.

Judges have discretion whether to award attorney fees to the prevailing party. Many real estate attorneys expect that judges will be more likely to award fees to a person who successfully defends an adverse possession claim than to a person who succeeds in adversely possessing a neighbor's property. That would make adverse possession claims substantially more risky to assert.

Additional resources provided by the author

The 2011 statute can be found below.

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