Two Kinds Of Adverse Possession In Washington: Statutory Vs. Common Law
Most people when discussing adverse possession claims in Washington are unwittingly referring only to one kind- common law adverse possession. Technically, there are two basic species of adverse possession in Washington- claims based upon statute, and claims based on the common law.
Common Law Elements: To establish a common law claim of adverse possession, the claimant must establish that possession is open and notorious, actual and uninterrupted, exclusive, and hostile. These elements are discussed in greater detail here: (https://beresfordlaw.com/adverse-possession-in-washington-state/). Washington cases have fleshed out the elements of common law adverse possession over more than a century of precedent. The statute which effectively confirms common law adverse possession (RCW 4.16.020) is not a substantive statute; rather, it takes the form of a statute of limitations “for the recovery of real property.” The party whose property is being taken by adverse possession is time-barred from being able to recover their property against the adverse possessor.
Elements under RCW 7.28.070: To establish a statutory claim of adverse possession, the claimant must generally establish actual, open and notorious possession, under claim and color of title, made in good faith, for 7 successive years in possession, and pay all taxes legally assessed on the property. These elements are far more stringent than those of common law adverse possession, and apply to a much narrower set of circumstances. First of all, statutory adverse possession requires “color of title” and good faith, which courts have interpreted to mean that the adverse possessor has to trace their title to some documentation purporting to convey title. Second, “good faith” typically means that the claimant must genuinely believe that they have a right to possess/own the property. Third, the claimant must pay the assessed taxes on the property in question; mere possession is not sufficient. In the case of vacant and unoccupied land, the possession requirement is removed, under RCW 7.28.080. But if the claim is for adverse possession of forestland, then under RCW 7.28.085, the claimant faces the additional requirement proving, by clear and convincing evidence, that they built substantial improvements that have remained entirely or partially on the land for at least 10 years, unless the claimant proves that they relied in good faith on location stakes or boundary markers set by a registered land surveyor.
As one might imagine, statutory adverse possession is somewhat rare because of its more stringent requirements. It is far more common for someone to begin occupying a neighbor’s property because of a mistaken understanding of the boundary location, than it is for someone to actually pay taxes on the disputed property and have some form of deed to it, purporting to convey title. Nevertheless, where one can meet the statutory requirements, the shortened period of 7 years can make a claim ripen earlier.
If you are involved in an actual or potential adverse possession dispute, the lawyers at Beresford Booth have a wealth of experience in real estate matters and litigation, and would be happy to assist you with your needs.