Adverse Possession: When trespassing becomes ownership

What is Adverse Possession?

You may know adverse possession by the colloquial term, “squatter’s rights.” Basically, if someone has had possession of a piece of real property for a long time without the permission of the legal owner, then he or she may be entitled to ownership of the property under adverse possession.

Adverse possession is a common occurrence in boundary line disputes. If you think your neighbor might be encroaching on your land (or vice versa), you may also want to check out our article on boundary line disputes.

Elements of Adverse Possession

Under Washington State case law and statutes, an adverse possessor can usually only claim a right to the property after 10 years. However, if the adverse possessor has record title, or has continuously paid the property taxes and has color of title (typically in the form of a flawed paper title that does not show up on the record), then the adverse possessory period is only 7 years.

Along with possession for the required duration, an adverse possessor must generally satisfy all of the following 5 requirements:

  • Actual possession: The adverse possessor must be in true possession of the land such that the title-holder could have pursued an action for trespass.
  • Exclusive possession: The adverse possessor’s possession of the property is uninterrupted by the true owner. If the true owner ousts the adverse possessor, that restarts clock, even if the adverse possessor moves right back in the next day.
  • Continuous use: The adverse possessor must have used the property as an owner would have for the entire duration of possession. If the property is a normal single-family dwelling, then the adverse possessor must typically use that property as a primary residence for the whole possessory period. Vacations or trips to the hospital would probably not interrupt the continuity of use. However, if, for example, the property were a remote hunting cabin in the woods that would not normally be used as a primary residence, the adverse possessor may be able to claim continuous use if she has used the cabin for hunting trips each year for the possessory period.
  • Open and notorious use: If the owner has actual knowledge of the use, then this element is met. Otherwise, this element is satisfied by the kind of use that would put a reasonable person on notice. For example, if the adverse possessor has put up a fence, closed a gate, built a building, or planted crops, then the adverse possessor’s use would be deemed “open and notorious” by the courts.
  • Hostile use: This element does not require antagonism of any kind. Rather, the hostility requirement is met when the adverse possessor uses the true owner’s land without permission, in a manner inconsistent with the true owner’s rights. Thus, occupying land under a good faith but mistaken belief that it is yours would still be considered “hostile” under Washington law.

Defending Against an Adverse Possession Claim

There are a number of things that can stop adverse possession in its tracks:

  • Negating one of the above elements: If the rightful property owner can show that the adverse possessor has not satisfied one of the above elements, then the adverse possession claim will fail.
  • Government property: You cannot adversely possess government land.
  • Tolling: If the rightful owner has died, is disabled, is absent from the state, is in the military, or is in prison when the adverse possessor moves onto the property, then the 7 or 10-year possessory period may be “tolled” (i.e. may not begin to run) until the rightful owner is no longer indisposed. For example, if a squatter has been in possession for 12 years, but the rightful owner was serving abroad in the military when the adverse possessor entered the property and did not return for 3 years after that date, then those 3 years will be subtracted from the 12 years the adverse possessor has been on the property for the purposes of determining adverse possession. Thus, the adverse possessor will be deemed to have only possessed the property for 9 years, which is typically not long enough to claim title under adverse possession in Washington (without color of title or paying the property taxes–in which case the shorter 7-year possessory period would apply, and the adverse possessor would have adversely possessed the property).
  • Permission: If the rightful owner has given the adverse possessor permission to occupy the property, that will usually spoil the element of “hostility” because, if he has permission, the adverse possessor’s use will not be hostile to the rights of the owner.

The Purpose of Adverse Possession

Usually, adverse possessors are using the subject property under a mistaken (but good faith) belief that they own it. For instance, if your neighbor accidentally built a fence 2 feet over the property line onto your property 10+ years ago, he probably has legal title to that property under adverse possession. Likewise, if you purchased a property 7+ years ago in good faith from a fraudulent seller who gave you flawed paper title, you may have clear title to that property now via adverse possession. In this way, adverse possession operates to smooth out long-overlooked mistakes in property ownership by giving title to the party that has been putting the property to good use for a long period of time. This is arguably a good thing.

However, adverse possession is sometimes criticized as legalized theft–and this critique certainly has some merit too. Occasionally, adverse possessors move onto a property for the express purpose of squatting for long enough to claim legal title via adverse possession. If these squatters meet all the elements of adverse possession, then the law rewards these trespassers with legal title to the subject property. This seems unjust.

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