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Have you ever noticed that your neighbor’s fence encroached onto an adjoining lot? Or that their garage looks a little close to the boundary line? If so, you may have encountered a situation involving the legal theory known as adverse possession.

Simply stated, adverse possession means using someone else’s property as if it were your own – and doing so for a long enough period of time that the law will now recognize you as the property’s rightful owner. To prove an adverse possession claim, you must show your possession meets the following standards:

It is open and notorious (meaning your possession is obvious to anyone who looks);
Actual and uninterrupted (meaning you, your fence, tree, building, or whatever actually occupies the property);
It’s exclusive (you don’t allow others to possess the land you are adversely possessing);
It’s hostile to the true owner. Here “hostile” does not mean doing battle, just that your occupancy and use is contrary to their occupancy and use.
It continues for ten (10) years. You can “tack” your predecessor’s adverse use onto your own to come up with 10 years.

For a more complete discussion of these items, see ITT Rayonier, Inc. v. Bell, 122 Wn. 2d. 754 (1989) and Chaplin v. Sanders, 100 Wn. 2d. 853 (1984).

Our Court of Appeals has recently ruled on two cases involving the theory of adverse possession. Due to space considerations, I will boil down these cases to their legal essence.

“Hostile” requires that the adverse possessor treat the land as its own, against the world, through the ten-year period. Whether the possession is “hostile” or not will be determined solely on how the adverse possessor treats the property. Furthermore the adverse possessor does not have to show the encroachment was made in good faith (i.e. as a result of a mistake). The Court will recognize claims made by persons deliberately encroaching on their neighbors (provided all other parts of the theory are met).
The ten (10) year statute of limitations starts running from the time the adverse possession starts, not when the true owner finds out about it.

Taken together, these developments make life difficult for absentee landowners. They are now vulnerable to greedy neighbors, or neighbors who mistakenly claim the absent owner’s land as their own. In sum, landowners must be more vigilant than ever in policing their boundaries.

In Timberland Homeowner Association v. Brame, 79 Wn. App. 303 (1995), our Court of Appeals dealt with the adverse possession of property belonging to a Homeowner’s Association. It seems the Brames built a fence and patio on the Association’s property. The Association, which owned the property, had given an easement across the property to all of its members (including the Brames). The Association told the Brames to remove their encroachments. The Brames refused and the Association sued them.

The most interesting part of the Court’s decision was that the Association could not sue the Brames to enforce its members’ easement rights because it did not have “standing” (the Association was not the real party whose interest was affected). The proper party should have been all of the individual members of the Association, because it was their easement the Association was trying to enforce. The Appellate Court said the individual members should have authorized the Association to enforce their rights or show that the Association had a “present, substantial interest” in the easement rights, and that it would be benefited by deciding in its favor. Timberland at pages 308-309.

This decision has a number of practical implications. For example, can you image trying to get 400 lot owners to agree to assign their rights to enforce the easement to the Association? Unless present in the original covenants, getting these consents would be a logistical nightmare. In a related twist the Court also made short work of the Association’s ownership interest in the property, stating that the Brames had proven their adverse possession claim. This clarifies the question of whether an Association member can make an adverse possession claim against their own Association – currently a hot topic in our area.

In sum, Homeowner’s Associations must keep close watch on encroaching members, and must make sure the Association’s membership has authorized it to enforce their interests.

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.