Adverse Possession Against the Government in Washington State?

William O. Kessler, Edmonds Lawyer

Adverse possession is a legal doctrine under which Person X can establish real estate ownership over a portion of land held in record title by Person Y through X’s consistent use (i.e. possession) of Y’s property. Here is an overview: beresfordlaw.com/adverse-possession-in-washington-state/. Adverse possession is codified under RCW 7.28 et seq.

Generally, one cannot adversely possess against the government. However, as early as 1915, the Washington Supreme Court recognized an exception: one could adversely possess against a municipality (cities, counties, and other governmental entities below the state level) if such municipality used the land only in a “proprietary capacity,” rather than in a “governmental capacity.” Gustaveson v. Dwyer, 83 Wash. 303, 307, 145 P. 458 (1915). The Supreme Court has done little to define “governmental” versus “proprietary.” In Washington, there is an appellate court which is beneath the Supreme Court, called the Court of Appeals. The Court of Appeals is bound to follow the rulings of the Supreme Court. The Court of Appeals is divided geographically into Divisions 1, 2 and 3, as depicted here: https://www.courts.wa.gov/newsinfo/resources/?fa=newsinfo_jury.display&altMenu=Citi&folderID=jury_guide&fileID=divisionsdisagree.

When it comes to adversely possessing against municipalities, Division 1 applies a different test than do Divisions 2 and 3:

  • In 1974, Division 2 allowed adverse possession against a county when “the county held title in fee simple to a parcel of lakeside property, which the county had never devoted to any use, public or otherwise…” Sisson v. Koelle, 10 Wn. App. 746, 751, 520 P.2d 1380 (1974).
  • In 1989, Division 3 similarly allowed adverse possession against an irrigation district when it found “the property in question has never been set apart or devoted to any use by the [irrigation district].” Kesinger v. Logan, 51 Wn. App. 914, 919, 756 P.2d 752 (1988), aff’d on other grounds, 113 Wn.2d 320, 779 P.2d 263 (1989).
  • However, in 2021, Division 1 declined to apply the governmental-versus-proprietary test. Instead, it found the municipality defeated adverse possession when it “held [the land] for any public purpose…when [the municipality’s] actual or planned uses directly or indirectly benefit or advance the public’s wellbeing.” Michel v. City of Seattle, 19 Wn. App. 2d 783, 801, 498 P.3d 522 (2021) (emphasis added). Earlier this month, the Supreme Court declined to review this case, leaving Michel good law in Division 1.

Adverse possession is a relatively simple concept. However, it is usually complex in application, due to the facts and practical realities of each case. At Beresford Booth, our team has extensive experience litigating boundary disputes, including adverse possession. We look forward to working with you.

To learn more about adverse possession, please contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.

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