Adverse Possession in Washington: Ten Years, Five Elements, and Why Mowing Is Not Enough

What does Washington require to prove adverse possession?

The elements come from case law rather than a single statute. To establish a claim of adverse possession, the possession must be exclusive, actual and uninterrupted, open and notorious, and hostile and under a claim of right made in good faith.

The clock comes from a statute, and not the one people expect. The period throughout which these elements must concurrently exist is ten years, under RCW 4.16.020, which sets a ten-year limitation period for actions for the recovery of real property. Chapter 7.28 RCW supplies related provisions, including the shorter alternatives below, but the ordinary ten-year route runs through RCW 4.16.020.

Two features matter more than the rest.

First, the elements must exist concurrently and for the full ten years. Nine years of perfect possession followed by a year of absence does not add up. The claimant also carries the burden on every element, because the legal title holder enjoys the presumption of possession.

Second, "hostile" does not mean hostile. Washington abandoned any requirement of subjective bad intent decades ago. The nature of the possession is determined solely on the basis of the manner in which the possessor treats the property, and the possessor's subjective belief about who really owns the land is irrelevant. A neighbor who sincerely believed the fence was the boundary is not disqualified by that belief, and one who knew better does not lose for knowing.

What kind of use is enough?

This is the question the elements do not answer, and where most claims fail.

The measure is not effort, and not duration alone. The ultimate test is the exercise of dominion over the land in a manner consistent with actions a true owner would take. What counts depends on the land. Washington courts hold that what constitutes adverse possession of a particular tract depends on the nature, character, and locality of the land and the uses to which land of that type is ordinarily put. Possession sufficient for a timbered rural parcel looks nothing like possession sufficient for a city lot.

So the honest answer to "is mowing enough?" is that it depends on what an owner of that strip would ordinarily do with it. Mowing a lawn strip in a platted neighborhood, together with planting, fencing, parking, and treating the area as part of the yard for ten unbroken years, is the pattern that has succeeded. Mowing alone, on land where mowing is what a courteous neighbor does anyway, is the pattern that fails.

How does permission destroy an adverse possession claim?

Completely, and this is the most common reason a claim collapses. Permission to occupy the land, given by the true title owner to the claimant or his predecessors in interest, will still operate to negate the element of hostility. Permission and adversity are mutually exclusive, so if the use began with consent, the clock never started.

Two consequences follow that people find counterintuitive.

A handshake with a prior neighbor is not protection; it is the opposite. The friendly conversation in which the old owner said the fence was fine where it was converts the possession into permissive use. A claimant who offers that conversation as evidence of a settled boundary has handed the other side its defense.

Permission by a predecessor binds the successor's claim. The grant need not have come from the current owner. Permission extended to the claimant's predecessor in interest is enough.

For an owner on the other side of this, the corollary is that granting permission in writing is the mechanism the law provides for stopping a developing claim. What that document should say, and what it should avoid conceding, is not a form exercise.

What are the seven-year alternatives in chapter 7.28 RCW?

Washington has shorter routes, with conditions much harder to meet.

Color of title plus taxes. A person in actual, open, and notorious possession under claim and color of title made in good faith, who continues in possession for seven successive years and during that time pays all taxes legally assessed on the land, is adjudged the legal owner to the extent of the paper title. RCW 7.28.070. Note the three added requirements: a written instrument that appears to convey title, actual good faith, and payment of every tax for every one of the seven years.

Vacant and unoccupied land. A person having color of title made in good faith to vacant and unoccupied land who pays all taxes assessed on it for seven successive years is deemed the legal owner to the extent of the paper title. RCW 7.28.080. The statute includes a trap: if anyone with a better paper title pays the taxes for even one year of the seven, the claimant loses the benefit of the section.

Title deducible of record. A seven-year period also applies to a possessor holding a connected title in law or equity deducible of record from the state or the United States, or from certain officers authorized to sell land for unpaid taxes or on execution. RCW 7.28.050.

The pattern is deliberate: where the claimant has a document and has paid the taxes, the legislature shortened the period and added a good faith requirement, which under the ordinary ten-year route is not an element at all. The paths are not interchangeable, and choosing wrong wastes a case.

Can I count the years my predecessor possessed the land?

Sometimes you can, under a doctrine called tacking. Where there is privity between successive occupants holding continuously and adversely to the true title holder, the successive periods of occupation may be tacked to each other to compute the required 10-year period of adverse holding.

Privity is the whole fight. It is not enough that two people in sequence used the same strip; there must be a relationship connecting their possessions, ordinarily meaning something passed from one to the other. Whether a particular sequence of deeds, sales, and informal handovers creates that connection gets resolved on the documents and the testimony, not on the doctrine.

How is a prescriptive easement different?

A prescriptive easement gives a right to use land. Adverse possession transfers ownership. The doctrines are analogous and Washington courts analyze them along similar lines, but the remedy differs and so do the elements.

To establish a prescriptive easement, the claimant must use another person's land for ten years and show that the use was open and notorious, that it was continuous or uninterrupted, that it occurred over a uniform route, that it was adverse to the landowner, and that it occurred with the knowledge of the owner at a time when the owner was able in law to assert and enforce his rights. The uniform route requirement has no counterpart in adverse possession, and it defeats claims built on wandering, occasional use.

Gamboa also settled a muddled question, and the answer favors landowners. The Washington Supreme Court held that an initial presumption of permissive use applies to enclosed or developed land cases in which there is a reasonable inference of neighborly sufferance or acquiescence, and it described what constitutes such a reasonable inference as a fairly low bar. The claimant bears the burden of proving the elements. A neighbor who has driven across a road the other owner built and maintained, without interfering with anything, starts from behind.

Where this goes wrong

Assuming maintenance equals ownership. Ten years of mowing a strip is not a legal conclusion. It is one fact bearing on whether the possession was the kind an owner would exercise over that land, and standing alone it usually is not.

Relying on the old neighbor's blessing. The most damaging error available, because the claimant volunteers the fact that kills the claim. Permission negates hostility, and a friendly understanding with a prior owner is permission.

Doing nothing while a claim matures. An owner who notices the encroachment and decides it is not worth a confrontation is letting a limitation period run. Ten years is not long in the life of a fence. And public land does not work this way at all: the color-of-title provisions do not reach land owned by the United States or this state, school lands, or lands held for any public purpose. RCW 7.28.090.

Believing that winning the argument settles the title. Possession does not clear the record. Making the boundary marketable requires an action to quiet title, brought by a person having a valid subsisting interest in real property and a right to possession, with judgment quieting title or removing a cloud. RCW 7.28.010. Until a court enters that judgment and it is recorded, the next title company to examine the parcel sees the recorded line, not the fence. So does a buyer's lender.

Overlooking the costs and tax provisions. In adverse possession actions filed on or after July 1, 2012, a prevailing claimant may be required to reimburse the record title holder for taxes paid during the claimant's possession and to pay unpaid taxes to the county treasurer, allocated as the court finds equitable. The court may also award costs and reasonable attorney fees to the prevailing party where it determines an award is equitable and just. RCW 7.28.083. Winning is not free, and losing can be expensive.

What a lawyer does here that you cannot do yourself

The elements are public; the work is in the evidence and the procedure. That means establishing the ten-year window with sources that survive cross-examination, which often means aerial photography, tax records, utility records, prior surveys, and the recollections of people who lived there then. It means reading the chain of title for the privity tacking requires, and for the permission that defeats the claim. It means choosing between the ten-year route and a seven-year statutory route based on what the documents actually support. And it means bringing or defending a quiet title action, because a judgment is usually what makes the result marketable, though a recorded boundary line agreement or a deed from the neighbor can also do it. These cases are tried on testimony about what happened on a strip of ground twenty years ago, which is why contemporaneous evidence matters more than argument.

That is the work I do. I am an independent attorney in downtown Spokane, and real estate is the largest part of my practice: boundary and encroachment disputes, adverse possession and prescriptive easement claims on both sides, easement and access matters, and quiet title actions, in superior courts across Washington, most often in Spokane, Klickitat, Kittitas, Benton, Franklin and Yakima counties.

If there is a fence or a driveway in question

The useful time to look at one of these is before either side has spent money on the wrong theory. I offer a free initial consultation by appointment at my downtown Spokane office.

Disclaimer

This article is general information about Washington law, not legal advice, and reading it does not create an attorney-client relationship. Law changes, and how it applies depends on facts specific to your situation. If you have a question about your own circumstances, speak with a lawyer.