Articles

Adverse Possession

Let's say that you buy a house with a fenced yard in a nice, quiet tree-lined residential neighborhood. The months and years drift by. You get along fine with your neighbors. One fine day, eight years after your purchase, you respond to a knock on your door. It's good old Fred, your next door neighbor. He just had his lot surveyed, and discovered that your fence is four feet over on his side. One of the prior owners of your lot built the fence on Fred's land. Fred puts his arm around your shoulders and grins, "You're trespassing on my land."

Fred cheerfully lets you know that he's going to tear down your fence and put up another one on the platted property line. You go outside and measure what that means. You suddenly realize that Fred is going to end up with two feet of your driveway, two Dogwood trees, and ten prize rose bushes - including "Peace", for crying out loud. You begin to plot war against good old Fred.

You make an appointment with your lawyer, Art Reamer. Artie tells you that there's good news and bad news.

First the bad news. Fred is right about the property line. The house you live in is part of a development that was platted in 1948, and - sure enough - your lot's boundary with Fred's is right where his surveyor said it was. Every purchaser of your lot, including you, is legally presumed to know where the property line is. According to your deed and the plat, your fence is four feet over on Fred's side. You decide that you can kiss Peace goodbye.

But wait! Your lawyer has good news, too. Artie leans across his huge mahogany desk, looks you square in the eye, and says in a hoarse whisper, "Adverse Possession." He encourages you to say it yourself. You repeat it several times, slowly, lovingly. It has a warm, mellow sound.

The Artie explains. Adverse possession might just mean that you actually own the four-foot strip that Fred seems to be drooling over. The law is that you can acquire legal ownership of land by "adversely possessing" it. If you meet the legal test, you can actually go to court and have a judge sign an order declaring that you own the strip.

Then you can file the court order with the county auditor so that the rest of the world (including the title insurance companies) will know that you are the legal owner of the strip. And when you sell the lot next time, you can actually add the legal description of the strip to your deed so it's clear that the buyer gets the Dogwoods.

All you have to do to prove adverse possession, says your lawyer, is show that your possession of the land has been (1) exclusive [good, you think to yourself], (2) actual and uninterrupted [no problem], (3) open and notorious [all right, you think, I can show all that] and, concludes Artie, (4) hostile. Hostile? "How could I prove that?" you think. Just last summer you and Fred were drinking beer, watching football and sharing a communal barbecue.

No problem, says the Artie. "Hostile" doesn't really mean "hostile." No animosity or rudeness is needed. Hostile means only that your use of the land has been the same kind of use that we would ordinarily expect of an owner. What a concept. Neighbors can be best buds and legally hostile at the same time. For once, you think to yourself, legalese will come in handy.

You begin to feel a warm glow for these legal gymnastics. You have certainly acted like the owner of the strip, mainly because you thought you were the owner. You weeded, fertilized and barked the garden, swept the driveway, and pruned the Dogwoods. Could it be that the roses will stay? Strange, you think. Hostility will lead to Peace.

There's just one catch, says the lawyer. You have to adversely possess the strip for over 10 years. Your heart sinks. You've only owned the land for eight years. But once again Artie delivers. Again he leans forward, relishing the moment. "Tacking", he says.

The ten years of adverse possession can be created by "tacking" several ownerships together. [If you don't believe that "tacking" is a legal concept, take a look at Roy v. Cunningham, 46 Wash. App. 409 (1986).] The fence was built twelve years ago by the guy you bought the house from. He immediately planted the garden and poured the driveway. His work on the strip was certainly exclusive, uninterrupted, open and hostile. By tacking his ownership to yours, you've got at least twelve years of continuous adverse possession. You are going to beat good old Fred.

When you leave your attorney's office you are humming "Everything's Coming Up Roses". What a guy, that Mr. Reamer. "You know what?" you say to yourself. "I'm going to add a big tip to his next bill." You pause as you fire up the Pontiac. "Not."