Tacking – Adverse Possession Through Successive Occupants
Under the doctrine of adverse possession, a person may acquire legal title to another’s land if they use another’s land for at least ten years in a manner that is (1) hostile, (2) actual and uninterrupted, (3) open and notorious, and (4) exclusive. In some situations, a property owner will knowingly or unknowingly use another’s land in a manner that otherwise meets the elements of adverse possession, save for less than the requisite ten years, before selling or conveying their property. If a subsequent owner continues with the same use of another’s land, the question becomes whether the ten-year clock resets or simply continues as if no change in ownership occurred.
Washington courts have resolved the question in favor of the party claiming adverse possession through their own use of another’s land and their predecessor’s use of another’s land pursuant to the legal principle of “tacking.” Consistent with one of the primary purposes of adverse possession—to ensure maximum utilization of land—tacking supports reliance on a predecessor’s use to satisfy the ten-year threshold for common law adverse possession. As long as a “reasonable connection” exists between successive occupants, Washington courts will apply tacking. Therefore, it is not necessarily required that the person claiming adverse possession possesses the land in question for ten years.
Tacking is best explained by a hypothetical. Imagine neighbor A unknowingly uses a strip of land that is owned by neighbor B in a manner that is hostile, actual and uninterrupted, open and notorious, and exclusive for six years. Neighbor A then sells their property to C. After moving in, C continues to use the same strip of land in the same manner that A did for another four years. C then considers selling and hires a surveyor. The survey shows that the strip of land is actually owned by B. While C would have the burden of proof, C can establish adverse possession by combining, or tacking, their use of the strip of land with A’s use of the strip to satisfy the ten-year requirement.
As a practical matter, employing tacking to establish adverse possession is easier said than done. A person claiming adverse possession has the burden of proof, meaning they must provide evidence supporting their predecessor’s use of the land in question. Prior owners’ whereabouts can be difficult to track down, memories can fade, and documentary evidence can be difficult to acquire. However, where supporting evidence exists, Washington courts will apply tacking to establish an adverse possession claim.
If you believe tacking may apply to support an adverse possession claim, whether as a person considering pursuing adverse possession or as a defending owner, it is wise to consult legal counsel. The lawyers at Beresford Booth have great experience advising and representing parties in adverse possession claims. {lease contact Beresford Booth at info@beresfordlaw.com or by phone at (425) 776-4100.