As the old saying from a Robert Frost poem goes, “Good fences make good neighbors.” But is that always the case? If one of your neighbors erects a fence that intrudes upon your property and sufficient time elapses, you might actually find that the neighbor is now the owner of the “disputed” area through the somewhat ancient and unusual doctrine of adverse possession.
What is Adverse Possession?
According to one respected legal reference work, adverse possession is a doctrine under which a person in possession of land owned by someone else may actually acquire valid title to it, so long as certain common law requirements are met, including the requirement that the adverse possessor is in possession for a “sufficient” period of time.
Common Law Requirements
Adverse possession is a doctrine of real estate law that actually dates back to English common law, upon which American law is based. While the various U.S. jurisdictions have some differences in interpretation, virtually all, including Washington State, require the following use characteristics to establish adverse possession:
- The use of the property must be “open and notorious.” That is to say is must be sufficiently evident so as to put the true owner on notice that a trespasser is in possession. Generally speaking, a fence is open and notorious.
- The use must be “continuous.” Here, the law speaks of continuous possession of the disputed area. However, the adverse use may be by consecutive users and the time periods added together.
- The use must be “actual.” The use must not merely be hypothetical. It must be real, such that the true owner could maintain a cause of action for trespass.
- The use must be “hostile.” That is to say the use by the trespasser must be adverse or without permission of the true owner.
- The use must be “exclusive.” For example, if scores of persons utilized a footpath across someone else’s property for a sufficient period of time, any of the “trespassers” would not be able to claim exclusivity. Accordingly, no ownership could pass from the true owner based on the doctrine of adverse possession.
Adverse Possession Must Be for a Considerable Period of Time
In addition to the use characteristics listed above, the use has to extend out over a sufficiently long period of time that the applicable law says an ownership interest has been acquired. Generally speaking, this is almost always a considerable period of time. In Washington State, that time period is a minimum of ten years [see RCW 7.28.010]. In Michigan, for example, the time period is 15 years.
How is Title Through Adverse Possession Formalized?
Typically, the “trespasser” files a civil action against the original owner “to quiet title.” The trespasser must show all the elements of adverse possession indicated above and that those elements have been in place for the requisite period of time – again, in Washington, for a minimum of ten years.
Getting back to the “good fence” erected on the other’s property, the existence of such an “open and notorious” barrier could, in many situations, go a long way to prove the required facts for adverse possession.
Skilled, Experienced Legal Counsel is a Key to Real Estate Disputes
Do you have a property dispute with a neighbor or business? Has a survey indicated that a “neighbor’s” fence, driveway, or structure encroach upon your property? Do you have other related concerns? Blado Kiger Bolan, P.S. has over 30 years of combined experience providing both individuals and businesses with quality legal services throughout the Pacific Northwest. We have represented clients many times in property disputes and we have the experience to advise you as to your rights. We pride ourselves on designing the simplest, most effective solution for your legal issue. Because of our firm’s extensive experience in business litigation, we are also better equipped than many law firms to help you avoid the expense of a court battle. For assistance with a real estate boundary dispute or any other type of real estate issue, contact us on the web, or call our office at 253-272-2997.
