by Daniel Peters, Adverse Possession Lawyer
Adverse possession is a doctrine that allows someone who trespasses on another’s land, if done in a certain manner for a long enough time, to become the owner of that land. Oftentimes the issue is discovered when one neighbor hires a surveyor in order to begin a project on their land. The survey might reveal either that the person hiring the surveyor has been trespassing on land that is the neighbor’s property according to the survey, or alternatively that the neighbor has been trespassing on land that the survey shows is owned by the hiring party. Fortunately or unfortunately, the survey may not settle the issue of who owns the land now because of adverse possession.
Whether adverse possession has occurred is very fact dependent, and requires a number all of a number of factors to be met. However, if all of the factors are met a person who was originally a trespasser can become the legal owner of the property that was being trespassed upon. The required factors, which will be discussed below, are:
- Exclusive possession (it must be used in the way an owner would use it);
- Actual and uninterrupted possession for the required time period (generally ten but sometimes seven years);
- Open and Notorious possession (meaning that someone observing the property would believe the trespasser owned the property); and
- Hostile (something of a misnomer, as this really means using the property as though they owned it and without permission);
If you believe that you may have a claim to property by adverse possession, or if your neighbor may assert a claim for your property, you should consider each of these factors, and if any one factor is not met, then the claim for adverse possession should fail.
The first factor, exclusive possession, means that the person claiming adverse possession used the property the way they would use their own property. One of the most important considerations, but not conclusive on its own, is whether the property is fenced into the adverse claimants yard. If the disputed property is fenced in along with the property of the person claiming adverse possession, and the original owner of that property is excluded from using it because of the fence, this will weigh heavily in favor of finding adverse possession. Other considerations include who mows or maintains the yard, whether it has been landscaped, and what other uses it is put to. If both neighbors use or maintain the disputed property in a similar fashion, exclusivity will probably not be found.
The next factor, actual and uninterrupted possession, requires that the adverse possession claimant physically use the property for the necessary period (generally ten-years, but under certain circumstances seven). This factor does not require the adverse possession claimant to spend twenty-four hours a day on the property, but it means that they must use it like an actual owner would, and not just have a picnic on the property once a year. Building structures or planting or gardening are all indicative that the property is being continuously physically used. In order to establish the requisite time period is met, adverse possessors may be able to ‘tack’ their time together. For instance, if a property owner fences in a disputed portion of property and then after five years sells his property, the buyer may be able to include the seller’s five years of possession to establish the requisite time period is met.
Open and notorious possession requires that the owner of the property is not stealthily using the property in the middle of the night, but instead is using it when and how a property would use it.
Finally, hostile use requires that the adverse possession claimant is using the property without the permission of the original owner. If a property owner has leased or licensed property to an adverse possession claimant the use will not be hostile. The use may become hostile, however, if the original owner tells the claimant to get off of the disputed property the use will likely become hostile and the time period can run from that point. In Washington, there is no requirement that the trespasser have either a scheming or innocent intention.
If you believe that you have been the victim of adverse possession, or have adversely possessed the property, you should contact a lawyer to discuss your options. When working with your lawyer to set your goals related to the issue, keep in mind that there are more than property rights and dollars at stake, there is also as a relationship with your neighbors.