Squatter's Rights - Does The Law Reward Trespassers?

May 2020 | Real Estate

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Perhaps you’ve heard of the legal doctrine of “adverse possession” sometimes referred to as “squatter’s rights”. Perhaps you’ve heard that someone can take another person’s land simply by trespassing on it. Can this be true?

The short answer is yes. Yes, a trespasser can become the owner of someone else’s land. When the trespasser becomes the owner, the person who has the paper title (deed) to the land no longer owns the land. But this happens only in very specific circumstances. And, although at first adverse possession seems shocking, even outrageous, the doctrine serves important policy purposes.

This article is an overview of adverse possession law in Washington. Other states have their own laws regarding adverse possession. Each adverse possession claim is as unique as the people and land involved. If you think you may have an adverse possession claim, or need to defend against an adverse possession claim, stop an ongoing trespass, or remove a squatter, you should consult a real estate attorney in the state where your property is located.  

What Does Someone Claiming Adverse Possession Have To Prove?

First, a trespasser does not adversely possess land overnight. An adverse possessor must possess the land for many years. Most adverse possession claims require the trespasser (let’s call that person “the claimant”) to be in possession of the land for ten years. Relatedly, the statute of limitations (RCW 4.16.020(1)) to remove a trespasser from land is also ten years. Sometimes a claimant only needs to possess the land for seven years before bringing a claim. Washington statutes RCW 7.28.050[1] and RCW 7.28.070[2] describe such adverse possession claims.

Second, the claimant cannot simply sit idly by and wait for the clock to run out on his or her adverse possession claim. The claimant has to do something with the land. Specifically, Washington law requires the claimant to prove the following:

  1. Actual possession of the land;
  2. Possession that is “open and notorious”;
  3. Possession that is “hostile”;
  4. Possession that is exclusive;
  5. Possession that is continuous.

The claimant has to physically occupy the land (actual possession) in a way that makes the claimant’s possession obvious to any observer. Most importantly, it should be obvious to the owner who has the deed that the claimant is possessing the land. Obvious possession is “open and notorious” possession. Evidence that the claimant uses land by landscaping or placing human-made objects or structures is generally evidence of possession.

It doesn’t matter whether the claimant knows someone else holds the deed to the land or whether the deeded owner believes the land belongs to the claimant. However, if the deeded owner has given the claimant permission to use the land, then the claimant’s use is not “hostile”. That’s why, for example, a tenant cannot adversely possess a landlord’s property.

A claimant must protect the land as his own by keeping trespassers off the land, including and especially the owner who has the deed. This is evidence of exclusive possession. If the deeded owner and the claimant share use, the claimant’s use may or may not be exclusive, depending on how often and in what way each person uses the land.

The claimant’s possession must be continuous for the ten (or seven) year period. A claimant can transfer his or her possession to another person without interrupting continuity. So if Allen uses someone else’s land as if it is his own for five years, and then sells the land to Betty who keeps using the land like Allen did, in five more years, Betty owns the land by adverse possession.

What Is The Purpose Of Adverse Possession?

Although adverse possession seems like a reward for wrongful behavior, its purpose is to ensure maximum utilization of land. In other words, adverse possession allows the person who dedicated labor and resources to use and improve the land over a long period of time to become the owner. Under the right set of facts, a claimant can adversely possess an entire parcel of land. More commonly, though, owners of neighboring property use the adverse possession doctrine to settle boundary disputes. For example, a homeowner maintains her land up to a fence or a line of trees for twenty years. If she later discovers that the fence or trees are four or five feet past her boundary line and on her neighbor’s property, she could use adverse possession to claim ownership of the four or five feet of her neighbor’s land. There are a number of alternative, but related, legal doctrines regarding boundary disputes or rights to use the land of another person that may apply depending on the circumstances of each case. If you have a dispute with your neighbor about your boundary line or other land rights, a real estate attorney can help you identify the best claims or defenses that apply in your specific situation.

My Neighbor Says He Owns Part Of My Land; What Do I Do Next?

If you and your neighbor are arguing about who owns a piece of land, as a rule it is best to see if you can work out your dispute directly with your neighbor. For one thing, a good relationship with your neighbor is invaluable. For another thing, lawsuits are expensive and time-consuming. If you win, there is a statute that allows you to ask the judge to order the other side to pay your attorney’s fees and legal costs. Of course, the same statute gives the court authority to order you to pay the other side’s fees and costs if you lose.

In order to have a productive conversation with your neighbor, you need to understand exactly what land is described in your deed. The best way to locate the corners and boundaries of your property is to hire a professional land surveyor to make precise measurements. The surveyor will locate your boundaries according to your deed. Moreover, if you do end up in a lawsuit, you will likely need to hire a surveyor anyway. Alternatively, you can carefully read your deed (if you can’t find your original, you can get a copy from the county recorder’s office) and try to locate the corners of your land yourself.

If you cannot resolve the boundary issue with your neighbor, consult with a real estate attorney in your state. The attorney can advise as to whether you or your neighbor has the better argument and might be able to suggest some ways to settle the dispute that did not occur to you.

Who Has A Better Claim To The Land?

In Washington, a claimant who adversely possesses land is the legal owner of the land after ten (or seven) years. That means if you discover your neighbor has been using a portion of your property for the last fifteen years, you should think twice about interfering with her use because she might own the land now, and you might be the trespasser! However, even though adverse possession gives a claimant legally valid title, as a practical matter, title by adverse possession may not be recognized by lenders or title companies unless it is confirmed by a court decision in a “quiet title” action. “Quiet title” is a type of legal action that resolves competing claims of ownership. As a 19th century California judge colorfully put it, quiet title is “for the purpose of stopping the mouth of a person who has asserted or who is asserting a claim to the plaintiff’s property”.[3]  It is important to consult a real estate attorney regarding the costs, benefits, and possible collateral consequences of pursuing—or not pursuing—a lawsuit to quiet title.

            This article is not legal advice.  It provides a summary overview of adverse possession law in Washington. Adverse possession laws vary from state to state.

 

[1] RCW 7.28.050 is rarely used. The statute is designed to validate deeds from public officials that are somehow defective, but only in very specific circumstances. For example, if a court orders a property to be sold by the county sheriff to pay debts of the owner, but the sheriff fails to follow important procedural steps during the sale, the deed the sheriff gives to whoever purchases the property may be void. Regardless, if the purchaser moves onto the property and maintains it for seven years, RCW 7.28.050 gives the purchaser valid title anyway.

[2] Under RCW 7.28.070, the claimant need only possess the land for seven years if she has “color of title”, her claim is “made in good faith”, and she has paid property taxes during the time she has been using the land. Someone has “color of title” when, for example, she has a document that gives her title to the land, even though the person signing the instrument does not have the right to convey title. She also has to believe “in good faith” that she has valid title. An example of color of title held in good faith could arise when a person inherits land from a deceased relative, but there are other relatives that also inherit ownership rights in the land. The person signs a deed giving all the ownership rights to the claimant, who has no way of knowing about the other relatives and their ownership interests. The claimant has color of title – a deed that says she has full ownership – and can make a claim in good faith because she sincerely believes she is the owner.

[3] Castro v. Barry, 79 Cal. 443, 446, 21 P. 946 (1889)