By Beau Ruff

Your property can be taken from you even though you have ostensibly done nothing wrong. You have paid your bills, you are current on your taxes, and you have exercised customary precautions in the acquisition and ownership of your property. Whether you like it or not, whether it’s fair or not, the law allows a person to be divested from his or her ownership in real property through a legal concept called adverse possession.

Conversely, the law

also allows a person to gain ownership of another’s real property through the

same legal concept. 

In the abstract, it

is almost unthinkable that this should be allowed. How can a person simply take

ownership of your property? An example helps to illustrate the legal concept

and its application.

Let’s assume that Kim

and Khloe each buy a lot in a new housing development. The lots are adjacent to

each other. Each walk the advertised quarter-acre lot. Each gets standard title

insurance on the purchase. And each builds her dream home on the site and

shares in the cost of a beautiful 6-foot stone fence on the property line.

Unbeknownst to both

Kim and Khloe, the property line separating the two lots was misrepresented.

Somehow, the line had been moved 10 feet onto Kim’s property – encroaching on

Kim’s property. 

Khloe ends up

building a shed on “her” property (which is actually on Kim’s property). The

two are fine neighbors.

Fifteen years later,

Kim tries to sell her property.

The extra cautious

buyer demands a survey to confirm the property dimensions and the property

line. Lo and behold, the survey reveals the truth: Khloe’s 10-foot incursion

onto Kim’s property.

Should Khloe now be

required to move the block fence and the shed that she has used for 15 years?

The law likely would say that Khloe is now the owner of the 10-foot strip of

land and she need not move the shed or the fence. Such is the purpose of the

adverse possession law.

A few requirements

for the application of the law are evident in the above example. First, the

land must be possessed for a long time (generally seven to 10 years). Second,

the party claiming adverse possession must possess the land in a manner that

is: open and notorious – that Kim knew Khloe was on the 10-foot strip

(regardless of whether Kim knew it was her land); actual and uninterrupted –

that Khloe used the land continuously; exclusive – that only Khloe used the

land; and hostile – that Khloe treated the land as her own. Gorman v. City of

Woodinville, 2012. 

The doctrine of

adverse possession arose through the courts – sometimes called the common law.

The aim of the doctrine to serve “specific policy concerns that title to land

should not long be in doubt, that society will benefit from someone’s making

use of land the owner leaves idle, and that third persons who come to regard

the occupant as owner may be protected.” Stoebuck, Adverse Possession in

Washington, 1960.

The example of the

divestiture of the 10-foot strip of land from Kim and the actual vesting of

title in the same strip to Khloe is just the tip of the iceberg. The law allows

the application of adverse possession against entire swaths of land, to form

ingress or egress easements, to establish easements for electric and cable and

water lines, or to otherwise modify property ownership rights.

So, what is a

property owner to do? As noted in the example, a great place to start is with a

survey to doublecheck the perceived boundary lines. When acquiring property,

you can get extended title coverage (for a higher premium cost), which would

include a survey to protect against encroachment.