It is often said that tall fences make good neighbors. In the world of adverse possession, the presence of a fence can often be the difference between winning or losing.
The vast majority of legal transfers of title occur through a transaction: buyer makes an offer to purchase real property from a seller, they enter into a purchase and sale agreement, and eventually they close. At the closing, the legal title shifts from the seller to the buyer by virtue of a deed. Adverse possession is different. According to this doctrine, title of property (commonly only a portion) will change ownership from one party to another without the presence of mutual consent. This change in ownership occurs purely under the context of the USE of the property.
While each jurisdiction may have unique interpretations of how to apply the adverse possession principals, they almost all require the following use characteristics: the property must be used (1) open/notorious, (2) actual, (3) exclusive, and (4) continuous (meaning uninterrupted) for a statutory period of time (i.e. 10 years). In the state of Michigan, for instance, the statutory minimum is 15 years, while in Washington State, it’s 10. Beach v. Township of Lima, 489 Mich. 99, 802 N.W.2d 1, 6 (2011), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance], citing Burns v. Foster, 348 Mich. 8, 81 N.W.2d 386, 389 (1957), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance]. See also RCW 4.16.020, [subscribers can access an enhanced version of this statute: lexis.com | Lexis Advance].
Adverse possession cases are by nature, fact driven. While the presence of a fence is not dispositive, courts that encounter a fence in an adverse possession dispute, they often lean heavily on that factual component to justify the granting of the claim. This makes sense under the circumstances: a fence is a physical barrier which demarcates two properties. (For an example, see Timberlane Homeowners Ass'n, Inc. v. Brame, 79 Wash. App. 303, 901 P.2d 1074 (1995), [subscribers can access an enhanced version of this opinion: lexis.com | Lexis Advance].) Even if a property owner knows that the fence is located in the incorrect location, he or she will not traverse the fence to show mutual possession of the property just on the other side of the barrier. This situation is exacerbated when the section of property subject to the adverse possession claim is small.
In application, an attorney defending an adverse possession claim should be direct in communicating this factual hurdle to their clients. Adverse possession by nature feels wrong since it’s an involuntary change of title from one party to another without compensation. However, it is a legal reality almost everywhere, and if there is a fence dividing the properties affected by the adverse possession, then defending and adverse possession claim becomes significantly more difficult.
Robert Dickson is a practicing attorney and adjunct professor at the Seattle University School of Law, where he teaches real estate litigation. He serves as the co-editor and contributing author for the LexisNexis Practice Guide: Washington Real Estate Litigation. Mr. Dickson is also an author for the Washington Lawyers Practice Manual, where he contributes to the Real Property Practice, and Land Use and Environmental Law chapters. For more information about real estate law issues, please visit the Washington Real Estate Law Blog or his firm’s real estate law page.