New survey says your fence sits on your neighbors property in Washington State - adverse possession?
- Peter Schneider
- Jun 9
- 5 min read
Here is all to common situation you purchase a house. You and your neighbor think you know where the property line is, and either the house comes with a dividing fence, or you build one.
Time goes by, and maybe the neighbor changes, a new survey is done, and lo and behold, it seems your fence is several feet into your neighbor's property. I.e. you've been fencing in your neighbors property for some time.
If your neighbor is nice, they probably come up with a neighborly solution, but we recently consulted with someone where the new neighbor was far from nice. The old fence needed maintenance and the new neighbor started threatening to press charges for trespassing if maintenance was done, and just generally started acting aggressive about the fence.
That caused the old neighbor to come and talk to us and we thought we would share our research with everyone. When your neighbor invades or excludes you from your property, typically you would have grounds to file an action for trespassing and press for criminal trespassing charges the ingressor. However, if you openly and notoriously trespass long enough, in many jurisdictions, eventually you become the new land owner.
RCW 4.16.020(1) says
For actions for the recovery of real property, or for the recovery of the possession thereof [to evict the trespasser]; and no action shall be maintained for such recovery unless it appears that the plaintiff, his or her ancestor, predecessor or grantor was seized or possessed of the premises in question within ten years before the commencement of the action [the action being the open and notorious trespasser].
That time can be cut to seven years if the trespasser has "color of title" and paid taxes under RCW 7.28.050. This is a less likely scenario where an erroneously filed title appears to give possession to land, but the document is not valid due to some mistake but no one contests it for at least seven years.
Further, to accomplish adverse possession, our client has to demonstrate that the property use was "hostile" - meaning without permission, "actual", meaning our client exercised control over the property, and "exclusive" meaning the ground wasn't shared by others.
Often a fence on a neighbors property is going to meet the criterial. Unless the neighbor recognized the issue inside of the 10 years and gave permission to the encroaching neighbor, a fence is generally going to be open and notorious, hostile, actual, and exclusive.
A lot of these principles came into play in Washington Court of Appeals Division 2 unpublished case Wohllben v Jahnsen decided in 2024. Ms. Wohlleben purchased a house in 2017, and attached to her house was a red stripe of concrete like so.
It was uncontested that the red stripe was partially on her neighbor's property and the concrete pre-dated the controversy by more than 10 years, so although Ms. Wohlleben had possessed her property for less than 7 years before the dispute went to court, this aspect of the case was a non-issue.
What lost Ms. Wohlleben the dispute was that the prior owner of her property had never asserted ownership or exercised control over their portion of the red concrete, or exclude his neighbors from using their portion of the red concrete.
As the Wohlleven case demonstrates, If the encroaching homeowners hasn't lived there for 10 years, don't assume they can't make an adverse possession claim. In many aspects of real estate, new owners step into the shoes of previous owners and adverse possession is typically the same.
A structure is almost necessarily going to meet the elements of adverse possession, and a dividing fence keeping a neighbor off his or her property is going to serve the same function as a structure.
To establish a claim of adverse possession, the party claiming adverse possession “must prove [their] possession was actual and uninterrupted, open and notorious, hostile, and exclusive” for the statutory period. Draszt, 146 Wn. App. at 542; RCW 4.16.020. “The nature of the possession will be determined on the basis of the manner in which the possessor treats the property.” Shelton, 106 Wn. App. at 50; see also Reitz, 62 Wn. App. at 581 (“For purposes of an adverse possession claim, the nature of possession is determined by the manner in which the parties treated the land, not by their subjective belief regarding their true interests in the land.”). “The construction and maintenance of a structure partially on the land of another almost necessarily is exclusive, actual and uninterrupted, open and notorious, hostile and made under a claim of right.” Draszt, 146 Wn. App. at 542; see also Shelton, 106 Wn. App. at 51; Reitz, 62 Wn. App. at 582. Wohlleven
See also NICKELL v SOUTHVIEW HOMEOWNERS ASSOCIATION. The Nickell's predecessor started aversely occupying property in 1985, they acquired the property in 1989, and the appellant court credited them with the time their predecessor started occupying the land "Recognizing that by June 1995, the Nickells had thus acquired title to the disputed strip by adverse possession"
To establish a claim of adverse possession, the burden is on the claimant to prove by a preponderance of the evidence that the claimant’s possession is (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile . . . “A claimant can satisfy the open and notorious element by showing either (1) that the title owner had actual notice of the adverse use throughout the statutory period or (2) that the claimant used the land such that any reasonable person would have thought he owned it.” . . . Hostility requires “that the claimant treat the land as his own as against the world throughout the statutory period.” . . . “[I]f the use of another’s land is open, notorious and adverse, the law presumes knowledge or notice in so far as the owner is concerned.”
Although these two Division 2 cases are unpublished, they show how our appeals court are resolving cases with similar facts and it seems very unlikely that a Washington State court is going to eject our client from what is almost certainly her property now.
Do you have a question or a telemarketing, debt collection, bankruptcy, contract, consumer protection, or appellant case that would make a great blog article? We might even review your pro-se complaint or motion in a blog post. Email peter@nwdebtresolution.com and/or nathen@nwdebtresolution.com and we may answer it for everyone!
The thoughts, opinions and musings of this blog are those of Peter Schneider, a consumer advocate and Washington State plaintiff's TCPA attorney at Northwest Debt Resolution, LLC. They are just that, his thoughts, opinions and musings and should be treated as such. They are not legal advice. If you are looking to file a lawsuit for TCPA violations and unwanted calls please contact me for a consultation.
Comments