Adverse Possession

A person who holds adverse possession of another person's land for a sufficient amount of time becomes the legal owner of that land. In Washington State, several things must be true for title to land to be transferred by adverse possession.

Elements of adverse possession

Here’s the legal terminology for what is required:

  • The possession must be actual physical possession for a period of 10 years.
  • The possession must be "open" and "notorious," usually meaning that the titled owner knows of the possession, or at least that it is reasonably discoverable.
  • The possession must be "hostile." This does not imply a hostile intent by the claimant. It refers to a possession that is inconsistent with the titled owner’s property rights. There is no hostility where the possession is with the titled owner's permission because a property owner normally has the right to permit others to possess his or her property.
  • The possession must be "continuous" or "uninterrupted." This doesn't always mean that the claimant must possess the land every single day for 10 years, but there must not be a significant break in the possession.
  • The possession must be "exclusive," meaning that the claimant must not share possession with the title owner.

Now in English. Broadly speaking, adverse possession may have occurred if, over a period of 10 years, the claimant treated land that is owned by another in a manner that the true owner would treat it, without the titled owner's permission.

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Each case depends on the specific facts

Whether an adverse possession claim is valid depends on the unique facts of every case. For example, building a fence might be evidence of excluding the titled owner, but not if the function of the fence is only to prevent children or pets from roaming. Parking vehicles on the property every day might show continuous possession, but if it is vacation property the element of continuousness might be supported by less frequent parking. What is open and notorious in an urban setting might not be so in a rural environment. All the facts and circumstances must be taken into consideration.

Sometimes it is difficult to find evidence that is important to the claim. For example, where someone claims that the adverse possession began years ago, even before the claimant or the current titled owner were around, what evidence exists showing (or refuting) that the possession began without the titled owner’s permission? That may be a problem if the person has died or moved far away.

Many judges and juries are skeptical of adverse possession claims. If the facts do not show that the claimant treated the property as his or her own, including excluding the titled owner, the claim will probably fail in court. But where there are strong facts backing up the claim, it is not unusual for a court to recognize the adverse possession claim as legitimate.

Do you need a lawyer?

Adverse possession is a highly technical area of law. There is no easy roadmap to guide someone to clear answers or results. If you are concerned that an adverse possession claim might be made against your property – or conversely if you believe you may have a legitimate adverse possession claim – a lawyer who has experience with adverse possession cases can be a real help.