Adverse Possession Basics
This article explains the basics of adverse possession from the perspective of a practicing real estate attorney in Everett, Washington (Snohomish County). You can find other, more in-depth writings on the subject by clicking the "ARTICLES" tab above.
I. AN OVERVIEW. The general public understands that adverse possession allows someone to gain ownership of another's land. But few laypeople have more than a vague idea of when the doctrine applies. Put simply, it applies when someone occupies another's land like a true owner for at least ten years without the true owner's permission. Courts separate this legal theory into numerous elements, all of which must be met for the transfer in ownership to take place. Different courts and lawyers articulate the elements using slightly different terminology. But the elements are essentially the same regardless. They are as follows: 1) open, 2) actual, 3) exclusive, and 4) hostile possession of another's real estate for 5) a continuous period of usually ten years or more. II. OPEN POSSESSION ELEMENT (I.E. THE "NOTORIOUS" POSSESSION ELEMENT"). To qualify as adverse possession, the occupier must use the land as openly as a normal owner would; this gives the owner sufficient notice of the occupation. If the owner notices and does not care enough to protect his property from the occupier, then perhaps the owner does not deserve to keep it. Similarly, the owner probably does not deserve the land if he never notices someone openly occupying it. The open possession element leads to interesting court battles where someone uses real estate as openly as an owner would, but the use is nonetheless difficult for the owner to see. In that situation, it becomes questionable whether the true owner was sufficiently put on notice. There are numerous, fact-specific appellate cases on this issue. III. ACTUAL POSSESSION ELEMENT. Possession is not sufficiently adverse unless it entails actual, physical use of the land akin to an owner's use. For example, people in the Puget Sound recently began recording written "Notices of Adverse Possession" without physically occupying the land in question. The notices of adverse possession presumably would not have satisfied this actual possession element. IV. EXCLUSIVE POSSESSION ELEMENT. A would-be-adverse-possessor must exclusively occupy or use the property. That is, he must not share the land with the owner or with the public at large. A few members of the general public occasionally walking across the land will not defeat this element. But the occupier should protect the land as an owner would, which might mean fending off others. V. HOSTILE POSSESSION ELEMENT. The hostility element is a misnomer. Contrary to the lay definition of the term hostility, there does not need to be any bad blood between the owner and occupier. Rather, the hostility element merely requires that the occupation be non-permissive. In other words, adverse possession cannot take place where the occupier used the land with the owner's permission. This hostility element can be complicated. In some situations, an owner cannot stop adverse possession by giving the occupier permission to use the land. And in yet other situations, the law assumes the owner gave permission even if permission was never given. VI. CONTINUOUS USE ELEMENT. A would-be-adverse possessor generally must satisfy all of the above-listed elements for at least ten consecutive years. If the occupier had "color of title" and paid taxes on the land, the period is shortened to seven years. Sometimes adverse possessors can "tack" or add together each other's periods of adverse possession to meet this time requirement. A full description of tacking is beyond this scope of this article. An owner's "disability" can delay commencement of the ten (or seven) year period. As with the tacking doctrine, a description of the disability doctrine is beyond the scope of this article. If you have an adverse possession case in the Puget Sound region and would like to speak to a professional about it, we invite you to contact one of our Everett & Seattle area real estate attorneys. |
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