Adverse Possession: When Trespassers Become Owners

If a landowner fails to occupy and/or use land for a lengthy period of time, it is possible for a trespasser to come onto the land, occupy it, and gain legal ownership of it. The legal term for this is “adverse possession.” Technically, adverse possession is a method of gaining legal title to real property by the actual, open, hostile, and continuous possession of the property to the exclusion of its true owner for the period prescribed by state law. Obviously, to the current land owner, this is an act of hostility, even theft. For the trespasser, or adverse possessor, this may seem fair if he or she cared for otherwise-abandoned property over an extended period.

Adverse possession has its roots in the usucapio law of ancient Rome, which allowed an individual in possession of a good to become the lawful proprietor if the original owner didn’t show up to claim it. Through the ages, particularly in periods of economic decline, applying this concept to land provided a way for real property to be productively utilized by ensuring that the individual who actually put the asset to use would eventually be able to own it.

For private citizens, most cases of adverse possession deal with boundary disputes between parties who hold title to adjacent properties. Suppose a landowner erects a fence on his property and the fence strays in some areas onto his neighbor’s property. The fence-builder then goes on to use all the land within the fence for farming. If the neighbor allows this to go on long enough without raising objection, eventually the fence-builder can claim ownership of all the land inside the fence, including that which originally belonged to his neighbor, through adverse possession.

What Qualifies as Adverse Possession?

In order to assert a claim of ownership through adverse possession, certain conditions must be met. Washington State law requires that the possession be:

  1. Actual. The adverse possessor must physically use the land as a property owner would. Merely walking or hunting on land does not establish actual possession. The actions of the adverse possessor must change the state of the land. In the case of non-residential property, this could mean clearing, mowing, planting or harvesting produce, logging or cutting timber, mining, fencing, pulling tree stumps, running livestock, constructing buildings, or other like improvements. If the property is residential, this could mean mowing the yard, trimming trees and hedges, changing locks, or repairing or replacing fixtures such as a swimming pool pump, sprinkler system, or appliances.
  2. Exclusive. The adverse possessor must hold the land to the exclusion of the true owner for the statutory period, which is 10 years in Washington. If at any time the true owner uses the land for any reason, adverse possession cannot be claimed.
  3. Uninterrupted. The adverse possessor must hold the property continuously for the entire ten years. Occasional activity on the land does not count. For example, merely cutting timber at intervals, but not performing other ownership actions in between, fails to meet the criteria. If at any time during the ten years the true owner ejects the adverse possessor either verbally or through legal action, the clock stops. If the adverse possessor then returns, the ten-year countdown begins anew.
  4. Open and notorious. The adverse possessor’s use of the property must be so visible and apparent that a diligent owner could not help notice. This criteria may be met by building a fence, opening or closing gates or using other entries to the property, posting signs, planting crops, erecting buildings, housing animals, or similar activities.
  5. Hostile. The adverse possessor must enter or use the land without permission from the owner. Adverse possession cannot be claimed by renters, hunters, or others who enter with the owner’s permission.

In the state of Washington, all five criteria must be met for a period of 10 years to qualify for adverse possession, and the adverse possessor has the burden of proof.

Alternatively, if an individual has held a property and paid all taxes on the property for seven years under a “good faith color of title,” he need only prove actual, open, and notorious possession to establish an adverse possession claim.

We Can Help

If you believe you have a claim of adverse possession, or if you are a landowner facing an adverse possession lawsuit, see a real estate attorney immediately. Adverse possession is a complicated matter, and you don’t want to take it on without the guidance of qualified counsel. We at the Deno Millikan Law Firm have deep experience in this area and stand ready to ensure your legal rights are protected. Contact us today at 425-259-2222 or contact us online.