Adverse possession, more commonly known as “squatters rights” is an interesting situation, often fueled by surprise and emotion. Property owners understandably take matters concerning their residential home, including the dirt within its boundary, personally. To provide a quick definition of adverse possession, if someone has had possession of a piece of property for a long time (ten years in the state of Washington) that person could possibly be entitled to direct ownership.
If you believe your neighbor may be using land that’s rightfully yours or if you need to claim adverse possession yourself, it’s important to understand exactly what that entails and how to effectively make a claim, or defend against it.
The law professionals at Holmquist + Gardiner in Seattle, WA specialize in adverse possession disputes and provide clarity based on the Washington State requirements.
Adverse possession claims in Washington most often occur as a result of boundary line mismanagement within residential spaces, both in rural and suburban areas. Here’s an example of each, to give you a better idea of what these claims frequently look like:
Rural: Let’s say a long time ago, a creek ran along someone’s property and they assumed that creek marked their land boundary line. As such, they placed their fence right along the creek and everyone in the area followed suit. Then, years later, a formal survey is completed and it’s discovered that the original boundary line was off by a 10th of an acre. Many in the neighborhood vote to redraw the lines to continue ownership as they and their predecessors have for years. But one neighbor is not in favor because redrawing the lines would take away a field they claim ownership of and they aren’t willing to give it up. The neighbors of this opposing landowner who wants to keep their claim of ownership to the field would need to file an adverse possession claim to legally retain this parcel area.
Suburban: In a city neighborhood someone unknowingly put up a fence too far over on their own property. Since then, the owners have been using the area as their side yard. They’ve planted fruit trees, a garden and done some nice landscaping. Then, the neighbors next to them discover that technically, that strip of land is theirs. They abruptly remove and replace the fence and begin using that land as their own. It’s part of their legal description after all. If both parties think they own the land, an adverse possession claim would need to be filed to decide who legally owns the property.
As you can see, adverse possession rarely involves someone actually living in another person’s home and claiming it as their own, that’s a bit extreme! It’s often subtle land disputes and quite frequently a result of improperly placed fences and walkways. People tend to use the space as their own by mistake. They didn’t draw the initial boundary lines and simply assumed that the yard their fence surrounds is, well, theirs.
Once it’s discovered that there is in fact a boundary line discrepancy, people aren’t exactly willing to give up a parcel of land they view as part of the property they purchased. So, things can get tricky. Again, people are understandably emotional about their dirt. People are passionate about their homestead and their land, no matter how big or small.
5 Elements of Adverse Possession
Under Washington State law, you can legally claim a right to the property if you can meet the following five requirements.
Be in actual, open possession.
The person seeking adverse possession must occupy that parcel of land in a way that is open and notorious. In other words, you have to actively use the property to claim it. If someone walked by the property, would they look at it and assume you’re the owner? Examples of open possession would include planting trees, consistently mowing or maintaining the land, using the space for parties or BBQs, building a tree house or planting a garden.
Be in exclusive possession.
The land must be occupied by exclusively by you and may not be shared with the public or the true owner.
Hostile possession must be established.
In this case, hostile doesn’t refer to a drop-down battle. Rather, it means that permission has not been granted by the actual deeded owner of the property to occupy the land. If the landowner has given the occupant permission to use that space, it isn’t considered hostile and adverse possession cannot be claimed. For example, if a landowner isn’t aware that a neighbor’s fence was placed upon his or her property, the occupation would be considered hostile, as the owner hasn’t given permission.
Meet the statutory period of possession.
Under Washington State law, an adverse possessor can only claim right to the property after 10 years of use and possession. If the possessor is paying the property taxes on that piece of land, the time period can be reduced to 7 years.
Display continuous and uninterrupted use.
All the above elements outlined must be met at all times during the statutory period. That means the possessor cannot share possession with anyone else or give up use of the property, return to it later, and then count the time that property was abandoned as part of the continuous time period. When the possessor stops using the property, the 10 years restarts. This doesn’t mean you have to occupy hunting ground or a ski lodge year-round; use of the property is acceptable based on seasonal changes and the type of land being possessed. Tacking between property owners is also permitted. For example, if your predecessor used the claimed area for 9 years and you’ve used it for 1 year, together, the two of you can meet the 10-year requirement.
Adverse possession is not a possibility in all situations.
For example, titles to government-owned land cannot be obtained in this manner. If the rightful owner has died, is disabled, is absent from Washington, is in the armed forces, or is in prison when the adverse possessor takes ownership of the land, the 7- or 10-year period could be “tolled” or not begin to run until the rightful owner is no longer absent. If the rightful owner has given the possessor permission to use the property, that possession is no longer considered “hostile” and adverse possession is invalid.
The law office of Holmquist + Gardiner is experienced in the area of land use and real estate. We’ve helped land owners on both sides of the aisle in adverse possession disputes and understand the emotions that’re felt by both parties when a piece of their home is in question.
We take a deep dive, working to understand all elements and discover all necessary facts. We research the history of the property, know how to interpret legal documents, talk to surveyors and understand county recordings and land use reports. We put all the puzzle pieces together, helping you present a winning, rational argument.
If you have any questions about adverse possession contact a real estate attorney at Holmquist + Gardiner anytime. We are here to help!