What is Adverse Possession?

One common issue I’ve dealt with over the years is called adverse possession. The origins of adverse possession can be traced back to the Anglo-American common law, where it was developed as a way to encourage productive use of land and to resolve disputes over unclear boundaries.

Adverse possession is a legal doctrine under which a person can establish real estate ownership through consistent use (i.e. possession) of someone else’s property. To establish a claim of adverse possession in Washington State, the claimant must prove that their possession is:

1. Exclusive, meaning no other person has possessed the property for the statutory period;

2. Open and notorious, meaning that it is visible and obvious to anyone who looks at the property that someone else is using it;

3. Actual, meaning that the claimant has physically used the property;

4. Hostile, meaning that the claimant’s use of the property is without permission from the owner; and

5. Continuous for a period of ten years.

If the possessor is paying the property taxes on that piece of land, the time period may be reduced to 7 years.

When people purchase properties without the benefit of a Land Survey, they often assume they own to improvements that may have been constructed along the boundary lines, but this may or may not be the case. If someone has satisfied the above list, they may have the ability to claim property that was not originally contained within their deed.

When you purchase a property, it is important to identify potential encroachments. If you already own property, it is important to defend your property from adverse claims. If you plan on developing property, many jurisdictions require encroachments to be resolved prior to approvals, because if someone has a claim on your property, that may impact your buildable area.

Many people refer the process as “land stealing”, however this process is in place for a reason, so for those planning on claiming property via adverse possession, it is important to make sure you satisfy all of the above requirements, and it helps to document everything along the way for future court evidence. This process can be very costly, so make sure you understand what you are getting into. One important note is that in most cases, it is not possible to claim public right-of-way.

Many encroachments may be resolved by obtaining a Land Survey and discuss the findings with your neighbor, however if that doesn’t work and you need to defend your property, OR if you are planning on filing an adverse claim of ownership, you will want to obtain legal counsel for advice on how to proceed.