[WSBARP] Defeating Prospective Adverse Possession Claim

[Dwight Bickel]

The 7-year duration alternative does not usually provide a remedy where the “User” neighbor is occupying the land of another according to the recorded deed descriptions, such as by the User’s encroaching fence. The User does not have “color of title” to that land because that particular land is not within the legal description of the deed to the User. That particular land is not within the tax lot description, so the User has not paid the property taxes on that particular land. Both requisites are required. Further, there is a “good faith” requirement that I personally believe should be a requisite for all AP claims. Of course that is clearly not the WA law for the typical 10-year claim. A few years ago I supported and testified for a Bill that would not allow an AP claim if the possession was commenced by a person who did not believe he/she was the legal owner. The WSBA Real Property Section opposed it, so it died in committee.

RCW 7.28.070<http://app.leg.wa.gov/RCW/default.aspx?cite=7.28.070>
Adverse possession under claim and color of title—Payment of taxes.
Every person in actual, open and notorious possession of lands or tenements under claim and color of title, made in good faith, and who shall for seven successive years continue in possession, and shall also during said time pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title. All persons holding under such possession, by purchase, devise or descent, before said seven years shall have expired, and who shall continue such possession and continue to pay the taxes as aforesaid, so as to complete the possession and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section.

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