§8.1 - Adverse Possession

• Jurisdiction: Washington

§8.1 ADVERSE POSSESSION

This section examines the statutory and case law requirements for establishing title to real property by adverse possession in Washington. It reviews the 10-year basic limitations statute and the 7-year statutes applicable only in special circumstances.

This section is not intended to be a complete review of all cases applicable to these statutes. Fortunately, such a comprehensive and complete review of all cases prior to 1960 already appears in William H. Stoebuck, The Law of Adverse Possession in Washington, 35 WASH. L. REV. 53 (1960). Because the Stoebuck article cites and discusses all of the early controlling cases, the approach in this chapter is to cite mostly cases after 1960 on the points discussed. Prof. Stoebuck has similarly updated the cases and text of his 1960 article, including not only adverse possession but also other related doctrines. 17 William B. Stoebuck & John W. Weaver, WASHINGTON PRACTICE, REAL ESTATE: PROPERTY LAW Ch. 8 (2d ed. 2004).

Research Tip: A quite complete list of all adverse possession cases in Washington can be found by combining Professor Stoebuck's materials with the cases cited in the annotations to applicable code sections found in the most recent supplements to the annotated Revised Code of Washington. The applicable code sections are cited in §8.1(1) and (2), below.

This section also discusses certain guidelines in advising clients (claimant and record owner) who are dealing with real property against which adverse possession may be claimed.

Also mentioned in this section are certain related matters discussed in detail elsewhere in this deskbook. These are (1) use rights acquired through prescriptive claims (see §8.1(7)(d), below); (2) establishment of boundary lines (see §8.2, below); and (3) quiet title and ejectment actions, which are here discussed insofar as applicable to adverse possession. A more extended discussion appears elsewhere (see §8.3, below).

(1) A statutory concept with common-law elements

The law of adverse possession of real property in Washington has developed in a fashion similar to that of most other states. The foundation of the statutory element of adverse possession is a statute of limitations adopted in 1854 and amended slightly in 1877 and 1881. It has not been substantively amended since then and appears as RCW 4.16.020(1). In 1893, several other statutes, which also act as statutes of limitations, were adopted in the ejectment and quiet title section of the code. These have been only slightly amended since their original adoption. They appear at RCW 7.28.010, .050, .070, and .080. Title is vested by RCW 7.28.070 and .080. They each deal with special circumstances of adverse possession. As in many other states, these early code provisions, especially the basic limitations statute, followed the 1623 statute of limitations in England, The Limitation Act, 1623, 21 Jac. 1, c. 16 (Eng.).

The statute in England imposed a 20-year limitations period on actions to obtain the recovery of real property. Early limitations periods in the eastern United States generally were for 20 years or more. Western states, enacting statutes at later dates, adopted shorter time periods. The time periods in the United States range from 5 years in California, Idaho, and Nevada to 20 years in Delaware, Florida, and Illinois. The Washington period of 10 years is the mean period of the various states.

Generally, in Washington as in other states, there is a substantial amount of case law in the field; courts usually analyze whether a particular claimant's actions during the statutory period meet the common-law requirements for the elements of adverse possession. The great number of cases in the field demonstrates that the language and the concept of adverse possession are not as simple or direct as they may seem on an initial reading. Also, the age of the statutes, coupled with dramatic changes in property development, have caused some evolution in interpreting the statutes and early case law.

Authors analyzing the law in treatises and judges interpreting the law in cases often examine the history of and purpose for the law. It is extraordinary in the law to give a "trespasser" or "wrongdoer" rights as against a "true owner." The courts examine the reasons for this extraordinary result in determining whether the elements of adverse possession have been established. The 1623 English statute prefaces the limitations period by describing its purpose, "For Quieting of Men's estates, and avoiding of suites, be it enacted..." 21 Jac. 1, c. 16 (Eng.).

Courts and commentators have specified a number of other purposes for allowing the extraordinary result of adverse possession. These are then called upon to support the analysis of each element and to support the final result in most cases. These purposes include the following:

(1)	protection against stale claims
(2)	encouragement of the use and development of land
(3)	punishment of the lax owner and nonuser of land
(4)	clearing of title to land and clouds on title and facilitating the transfer of land
(5)	protection of third parties dealing with the possessor of land

In Washington, the basic limitations statutes appear on their face to be limitations on the remedy only, except for RCW 7.28.070 and .080, which expressly give title. However, by meeting the statutory time requirements and the common-law or statutory elements required in Washington, the party claiming by adverse possession not only bars all remedies of the former owner, but acquires legal title. Washington courts have so held on many occasions. E.g., El Cerrito, Inc. v. Ryndak, 60 Wn.2d 847, 376 P.2d 528 (1962); see also Henry W. Ballantine, Title by Adverse Possession, 32 HARV. L. REV. 135 (1918). As a practical matter, a possessor acquiring title by adverse possession must proceed with a quiet title action and obtain a judgment to insure the title acquired.

It is important, however, to remember that the title derived through adverse possession is complete even though it is neither of record nor insurable. An owner can pass whatever title he or she has to an adverse possessor just as if he or she had deeded it. This general concept aids in understanding many of the problems that can occur in adverse possession situations. For instance, a true owner of land (record owner) who has acquired adjacent land by adverse possession may pass the entire parcel to a purchaser by deeding his or her true estate and passing mere possession of the land acquired through adverse possession. In this way, strips of land along the boundaries of parcels owned by deed are passed to purchasers of the deeded parcels. El Cerrito, 60 Wn.2d 847. Also, a person who adversely possesses the land of an owner of a possessory estate gains only that possessory estate; the holder of a future interest is not affected. William B. Stoebuck & Dale A. Whitman, THE LAW OF PROPERTY §11.7 at 853 (3d ed. 2000) (hereinafter cited as Stoebuck & Whitman, LAW OF PROPERTY ); Metro. Park Dist. v. Rigney's Unknown Heirs, 65 Wn.2d 788, 791, 399 P.2d 516 (1965). Once title is acquired by adverse possession, it cannot be relinquished by parol abandonment or verbal declarations or any other acts short of what would extinguish title acquired by deed. The adversely possessed title also is not subject to the recording acts; hence it is unaffected by a conveyance of record title to a bona fide purchaser. Crescent Harbor Water Co. v. Lyseng, 51 Wn.App. 337, 345, 753 P.2d 555 (1988); Mugaas v. Smith, 33 Wn.2d 429, 206 P.2d 332 (1949).

In Halverson v. City of Bellevue, 41 Wn.App. 457, 704 P.2d 1232 (1985), the court applied the rule that by meeting the common-law or statutory elements required in Washington, including the statutory time requirements, the party claiming by adverse possession not only bars all remedies of the former owner, but acquires legal title. Halverson concerned a challenge to the validity of a plat that had been recorded without the signature of an adverse possessor, who obtained a judgment putting her legal title on record after the plat was recorded. The platting statute, Chapter 58.17 RCW, requires that all persons with any ownership interest in the lands being subdivided sign the dedication. RCW 58.17.165. In practice, municipalities require that the names on the dedication sheet match the names listed on the title report that is required by the same section. Halverson had not been asked to sign because the adverse possession interest was not recognized by the title attorney, nor by the City of Bellevue. Subsequent to the case, the legislature passed RCW 58.17.255, which requires the plat surveyor to note any "discrepancy" (including physical encroachments) on the plat and the title company to prepare a report after recording that discloses the discrepancies. This procedure does not change the force of the Halverson ruling but at least might put some purchasers on notice of the possibility of a future claim. (The statute does not require recording of the title report.)

In fixing the line established by adverse possession, courts are not required to find a blazed and manicured trail along the disputed boundary path but may, when it is reasonable and logical, project a straight line between the objects that mark the extent of possession. Lloyd v. Montecucco, 83 Wn.App. 846, 924 P.2d 927 (1996), review denied, 131 Wn.2d 1025 (1997) (finding that because a steep bank and wooded area did not easily permit a clear demarcation, the court may draw a straight line between the outside perimeter of the northwest corner of the fence and the northern edge of the bulkHead).

(2) The Washington statutory scheme of ownership through adverse possession

The basic statute limiting actions for recovery of real property to 10 years is at RCW 4.16.020 and reads as follows:

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