 |  | | NEWSLETTER ADVERSE POSSESSION
Boundary issues are abundant in Southwest Washington. This is because much of the area is rural and over the years, many old fences have been erected, which may or may not be the boundary line. This series will discuss the legal rules by which boundary lines are determined if the is a dispute. |  | A typical case arises when a recent survey discloses that the boundary line between two properties is 10, or 15, or 100 feet from an existing fence line. If the owners cannot agree to resolve the discrepancy, there is a boundary line dispute and the survey will usually designate the area between the survey and the fence as the “disputed area.”
Courts rely on two main theories to decide who owns the disputed area. One theory is called adverse possession. The other theory is called acquiescence.
The starting point in all boundary disputes is this:
The survey line will control unless one party can prove, by clear, cogent and convincing evidence, that the boundary should be some other line, usually the fence. Clear, cogent and convincing evidence is less than “beyond a reasonable doubt,” which governs criminal cases by more than a “preponderance,” which governs most civil cases. In practice, it means that the evidence the fence is the boundary must be pretty darn clear.
Adverse possession or acquiescence requires the elements occur over a ten-year period. This does not necessarily mean the most current then years. So, if there was adverse possession for a 20-year period ending five years ago, the party claiming to the fence line can still win if the disputed area has not been conveyed by some other legal means.
Adverse possession requires that the party prove that his or her use of the property was (1) open and notorious, (2) actually and uninterrupted, (3) exclusive, and (4) hostile. As you can guess, every case of adverse possession turns on the facts of the particular use. But here are some of the more common issues:
1. Open and Notorious. This element requires that the use be such that the opposing party can easily observe the adverse use. A cattle fence through heavily wooded property probably is not open enough to qualify. The open and notorious requirement also makes it more difficult to establish adverse possession over vacant land as opposed to occupied land. Physical objects like fences, buildings, trees, shrubbery and roads help establish the open and notorious requirement.
2. Actual and uninterrupted. This element requires a constant physical presence on the property for at least the ten-year period. Therefore, if there is adverse possession for eight years, a two-year interruption, and adverse possession for another eight years, the party claiming adverse possession will lose because the ten-year period is not continuous. But what if ownership of the property changes? Do new owners start the ten-year clock from the beginning because the use is interrupted? Usually not. Washington allows tracking of ownership so that the prior owner’s use can be included in the ten-year period for uninterrupted use.
Several cases have been addressed the actual occupancy requirement. Does that mean you have to pitch a tent in the middle of your tree grove or hay field to establish adverse possession? Again, usually not. The Courts require only that the property be used according to the character of the property. Thus, haying a field twice a year for ten years may be sufficient if that is consistent with average use of a hay field.
3. Exclusive. This element requires that the property claiming ownership be the only ones using the property. For example, if several neighbors hayed the hay field over a ten-year period, the use may be open and uninterrupted, but not exclusive and the adverse claim would lose.
What about tenants? Most Courts agree that a tenant’s use of the property can be used to establish adverse possession for the landlord.
4. Hostile. Contrary to its name, the hostile element does not require the neighbors be in active dispute, or even that the party claiming adverse possession has ill will. Hostile use only means the kind of use normally engaged in by the true owner. A true owner will hay his field, remove merchantable timber from his tree grove, pave his private road and mow the grass in his back yard. One case even cited the placing of thermometers on the claimed boundary trees as one of the elements to show the hostile use. if the use is similar to what an average owner would do, usually the hostile element is established.
Each of these elements has to be proved by clear cogent and convincing evidence, and each must last for at least 10 years.
I hope this outline helps you better understand adverse possession claims. Our next newsletter will discuss the second main theory, acquiescence.
If anything we share with you is helpful, please contact us to let us know. We look forward to hearing from you. | |
