Full question:
I purchased property in 2005 there is an existing fence on the north side (Barbwire, old 50+ years). Had a survey done in 8/12/2008 and it shows my property is around 12 feet north of the existing fence. The neighbor to the north of course thinks this is his property. The area in question is 12' x 1105' Is this my property legally and do I forfeit this if I do not move the fence? In what amount of time would I need to move the fence?
- Category: Real Property
- Subcategory: Adverse Possession
- Date:
- State: Washington
Answer:
The answer will depend on all the facts involved, such as how long the fence has been there, what it cost, and whether it is forest land. If not, a 7 year period to claim adverse possession may apply. If the court determines the fence is on your property, and adverse possession hasn't been gained, it may order the fence removed or that the other party compensate you for the value of the property encroached on. You may also enter into a boundary or easement agreement withthe neighbor.
When there is a boundary dispute due to a claim of encroachment on another’s property, a claim of adverse possession or prescriptive easement may be raised. Adverse possession claims seek to gain title to property, while prescriptive easement claims seek the right to continued use of, rather than the title to the property. Surveys generally determine the boundaries in property lines.
The basis of a defense to encroachment is adverse possession. In order for a neighbor to claim another neighbor's property by adverse possession, there are various requirements as to the use that must be met. There must be an actual, uninterrupted period of time, and a use that is open and hostile to the owner. If permission to use the disputed area is given, adverse possession doesn't apply.
Adverse possession is a means by which someone may acquire title to the land of another through certain acts over a defined period of time. Such acts must continue uninterrupted for the time period defined by state laws, which vary by state. The time period in Washington is 7 years. Payment of taxes alone isn't sufficient to claim a property by adverse possession. In general, the acts of possession must be overt, hostile, exclusive, uninterrupted, and under a claim of right, etc., so as to give the owner or others claiming entitlement to possession notice and an opportunity to counter the adverse possession. Payment of real property taxes and making improvements (such as paving or fencing) for the statutory period, which varies by state, are evidence of adverse possession but cannot be used by a person with no claim to title other than possession. Certain public property is not subject to adverse possession. Some states require that the possession be "under color of title," or that the person must believe that he has the right to possess it and has some form of document or is relying on some fact that while not actually conveying title, appears to do so. In addition, many states require concurrent the payment of property taxes for a specified period of time, and a few states also require that improvements be made upon the land. Eventually, the possessor is required to file for title with the county recorder. The actual owner then has a limited amount of time in which to challenge the newcomer's title. Essentially, the owner's only argument is to claim some sort of disability; such as age, mental instability, or imprisonment. The owner is not required to do much in order to stop the possessor from acquiring title; merely sending the possessor a note granting permission to be there will usually suffice. Various rules exist regarding the continuousness of the possession and the ability to "tack" various periods of possession together in order to satisfy the time of possession requirement.
A quiet title or trespass to try title action is the method of determining title to lands. In a quiet title action, it is possible to ask the court to issue an injunction to force another to do or refrain from doing an act. An injunction is an equitable remedy that the court may order when money damages will be inadequate to remedy the harm suffered.
In the case of an encroachment, a plaintiff may be awarded the fair value of the property rather than have the structure removed. Typically, the court will determine value of property based upon expert evidence as to the value of comparable property in the location. In order to award punitive damages for an encroachment, courts have held that the plaintiff needs to prove the defendant acted with recklessness that shows a conscious disregard of property rights. Punitive damages are designed to deter conduct that was based on wrongful intent, usually requiring some proof of fraud, malice, oppression, or other wrongful and intentional motives.
An easement may be created by agreement which grants a privilege of a specific and limited use of the land of another. A right of way is a form of an easement granted by the property owner that gives another the right to travel over and use the owner's land as long as it is not inconsistent with the owner's use and enjoyment of the land.
If a surveyor is negligent is surveying property, by failing to use the standard of care and skills typical in the profession, and that negligence causes harm to another, it is possible that the surveyor may be liable for all or part of a claim brought against the person harmed.
An easement may be created by agreement which grants a privilege of a specific and limited use of the land of another. A right of way is a form of an easement granted by the property owner that gives another the right to travel over and use the owner's land as long as it is not inconsistent with the owner's use and enjoyment of the land.
The following are WA statutes:
RCW 7.28.050 That all actions brought for the recovery of any lands,
tenements or....
That all actions brought for the recovery of any lands, tenements or
hereditaments of which any person may be possessed by actual, open and
notorious possession for seven successive years, having a connected title
in law or equity deducible of record from this state or the United
States, or from any public officer, or other person authorized by the
laws of this state to sell such land for the nonpayment of taxes, or from
any sheriff, marshal or other person authorized to sell such land on
execution or under any order, judgment or decree of any court of record,
shall be brought within seven years next after possession being taken as
aforesaid, but when the possessor shall acquire title after taking such
possession, the limitation shall begin to run from the time of acquiring
title.
RCW 7.28.070 Every person in actual, open and notorious possession of lands
or....
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.
RCW 7.28.080 Every person having color of title made in good faith to
vacant and....
Every person having color of title made in good faith to vacant and
unoccupied land, who shall pay all taxes legally assessed thereon for seven
successive years, he or she shall be deemed and adjudged to be the legal
owner of said vacant and unoccupied land to the extent and according to the
purport of his or her paper title. All persons holding under such taxpayer,
by purchase, devise or descent, before said seven years shall have expired,
and who shall continue to pay the taxes as aforesaid, so as to complete the
payment of said taxes for the term aforesaid, shall be entitled to the
benefit of this section: PROVIDED, HOWEVER, If any person having a better
paper title to said vacant and unoccupied land shall, during the said term
of seven years, pay the taxes as assessed on said land for any one or more
years of said term of seven years, then and in that case such taxpayer, his
heirs or assigns, shall not be entitled to the benefit of this section.
RCW 7.28.070 Every person in actual, open and notorious possession of lands
or....
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.
RCW 7.28.085 (1) In any action seeking to establish an adverse claimant as
the legal....
(1) In any action seeking to establish an adverse claimant as the legal
owner of a fee or other interest in forest land based on a claim of adverse
possession, and in any defense to an action brought by the holder of record
title for recovery of title to or possession of a fee or other interest in
forest land where such defense is based on a claim of adverse possession,
the adverse claimant shall not be deemed to have established open and
notorious possession of the forest lands at issue unless, as a minimum
requirement, the adverse claimant establishes by clear and convincing
evidence that the adverse claimant has made or erected substantial
improvements, which improvements have remained entirely or partially on
such lands for at least ten years. If the interests of justice so require,
the making, erecting, and continuous presence of substantial improvements
on the lands at issue, in the absence of additional acts by the adverse
claimant, may be found insufficient to establish open and notorious
possession.
(2) This section shall not apply to any adverse claimant who establishes
by clear and convincing evidence that the adverse claimant occupied the
lands at issue and made continuous use thereof for at least ten years in
good faith reliance on location stakes or other boundary markers set by a
registered land surveyor purporting to establish the boundaries of property
to which the adverse claimant has record title.
(3) For purposes of this section:
(a) "Adverse claimant" means any person, other than the holder of record
title, occupying the lands at issue together with any prior occupants of
the land in privity with such person by purchase, devise, or decent
[descent];
(b) "Claim of adverse possession" does not include a claim asserted under
RCW 7.28.050, 7.28.070, or 7.28.080;
(c) "Forest land" has the meaning given in [*] RCW 84.33.100; and
(d) "Substantial improvement" means a permanent or semipermanent
structure or enclosure for which the costs of construction exceeded fifty
thousand dollars.
(4) This section shall not apply to any adverse claimant who, before June
11, 1998, acquired title to the lands in question by adverse possession
under the law then in effect.
(5) This section shall not apply to any adverse claimant who seeks to
assert a claim or defense of adverse possession in an action against any
person who, at the time such action is commenced, owns less than twenty
acres of forest land in the state of Washington.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.
