What is Adverse Possession?

Disputes over boundary lines that are longstanding may result in a change in ownership, therefore, a change in the boundary line, regardless of the results of a survey.  The common offensive or defensive theory to get around the legal description and survey is adverse possession. Adverse possession is legal conclusion based on facts. Specifically, facts that show the adverse possessor has been treating the property as an owner would for the period of the statute of limitations for a quiet title or ejectment action.

So the court is asked to quiet title to the property in the name of the adverse possessor or the record title holder depending upon the facts proven. The legal conclusion confirms the ownership of real property arising from certain facts which are not of record. It is not the result of a judicial decision. Rather, the court confirms that sufficient facts have already created a superior interest in real property.

Technically then, the action is one for quiet title or ejectment under Chapter 7.28 RCW.  The record owner may attempt to eject the adverse possessor using the statutory cause of action, the response to which would be a counterclaim for quiet title based on adverse possession. Or, the adverse possessor may file an action to quiet title as against the record owner and the record owner defends by disputing the facts establishing possession, and counters with ejectment.

7.28.010. Who may maintain actions – Service on nonresident defendant

Any person having a valid subsisting interest in real property, and a right to the possession thereof, may recover the same by action in the superior court of the proper county, to be brought against the tenant in possession; if there is no such tenant, then against the person claiming the title or some interest therein, and may have judgment in such action quieting or removing a cloud from plaintiff’s title; . . .

The ten-year rule is the general statute of limitations for recovery of real property.  Facts amounting to adverse possession, with nothing more, must exist for ten years for superior title to arise in the claimant.

§ 4.16.020. Actions to be commenced within ten years – Exception

The period prescribed for the commencement of actions shall be as follows:

Within ten years:

(1) For actions for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery unless it appears that the plaintiff, his or her ancestor, predecessor or grantor was seized or possessed of the premises in question within ten years before the commencement of the action.

Adverse possession plus color of title or payment of taxes shortens the limitations period to seven years:

7.28.050. Limitation of actions for recovery of real property – Adverse possession under title deducible of record

That all actions brought for the recovery of any lands, tenements or hereditaments of which any person may be possessed by actual, open and notorious possession for seven successive years, having a connected title in law or equity deducible of record from this state or the United States, or from any public officer, or other person authorized by the laws of this state to sell such land for the nonpayment of taxes, or from any sheriff, marshal or other person authorized to sell such land on execution or under any order, judgment or decree of any court of record, shall be brought within seven years next after possession being taken as aforesaid, but when the possessor shall acquire title after taking such possession, the limitation shall begin to run from the time of acquiring title.

The record owner who does not actively seek

§ 7.28.070. Adverse possession under claim and color of title – Payment of taxes

Every person in actual, open and notorious possession of lands or tenements under claim and color of title, made in good faith, and who shall for seven successive years continue in possession, and shall also during said time pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title.

The attorney will see these facts come up in the context of a boundary dispute involving anywhere from a few square feet to tracts of acreage.  One party may have been using the property of another  for many years without knowledge and then a new owner comes in that asserts ownership.  A surveying mistake or a difference of opinion or method in resolving surveying issues may result in conflicting surveys.

In any case, traditional attitudes toward private ownership of real property, from the depths to the heavens, as a sovereign, in effect create the “Get off my lawn.” Mentality and confrontation.

Part Two Coming Up Next Week

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