Adverse Possession

HAPPY NEW YEAR! To get this year's columns off to a good start, I thought I would review on of the Court of Appeals' favorite topics (and one which generates a lot of calls to our firm). Adverse Possession! In particular, a recent case has now clarified when permission to use property can affect a claim for adverse possession.

As many of you know, the doctrine for adverse possession requires the claimant to prove they (1) exclusively, (2) openly, (3) “hostilely”, possessed the disputed property for 10 years.  Title to the disputed portion will pass to the claimant automatically, with no Deed recorded.

In the past, the concept of “hostile” possession has raised lots of questions.  As our courts have defined it, hostile possession simply means using the disputed property as an owner would.  The traditional method of defeating an adverse possession claim is to show that the true owner of the disputed property gave the claimant permission to use it.  Permission will vanquish the hostility element of adverse possession, and preserve the true owner’s title.  While helpful in theory, there were still many questions about when permission ended and adverse possession began.  Our Court f Appeals has now answered some of these questions.

In the case of Miller v. Anderson, 91 Wn. App. 822 (1988), the Court reviewed a case out of King County.  Miller and Anderson owned adjoining lots along the banks of Lake Washington.  Millers’ fence was a few feet into Anderson’s yard.  Many years earlier, the prior owners of both the Miller home and the Anderson home had recorded an agreement permitting the fence to encroach into the property, but still recognizing the platted line as the true boundary.

Miller claimed that the old agreement permitting the fence to encroach was no longer valid because the person receiving permission no longer owned the property.  They argued that permission was valid only to the person it was originally given to.  Once that person transferred or sold the property, any new person was not permissively using the disputed property.  Consequently, the Millers were adverse possessors.  The Millers claimed the Andersons’ property, all the way to the fence line.  The Court of Appeals disagreed with the Millers.  The Court stated, “We do not believe that an owner who gives his neighbor permission to use his land should be required to monitor any and all transfers of his neighbor’s estate to insure that his permission is not extinguished.”  In short, the Court held that permission, once granted is presumed to continue, unless one of the following events occur: (1) the adverse possessor is now asserting a hostile right (e.g. “I don’t need your permission, this land is going to be mine!”) or (2) The person granting permission has sold or transferred the disputed property to a new owner.  This new owner must grant permission to the claimant, or the adverse possession time clock will start ticking.

In addition, the Court stated that permission, to be effective, does not have to be clearly expressed.  Instead, permission can be expressed or implied.

So what does this mean to you?  The short answer is, pay close attention if a property buyer or seller tells you, “We have permission to use the neighboring property,” or “The neighbor has permission to use our property.”  In either event, this can be a clue that a boundary line may be in question.  Look for obvious grants of permission, such as a written agreement or easement.  Even then, be careful, as changes in the permitted use, or the person granting permission could have started the clock on an adverse possession claim.  If in doubt, the parties should seek the advice of legal counsel to clear up the issue before it becomes a problem.

Published January, 1999

This article contains information of general interest, and is not intended to be, nor should it be relied upon as a substitute for specific legal advice.