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Real Property & Development Review

Recent Legislation Raises Stakes in Adverse Possession Litigation

Posted in Real Estate

Authored by:  Clayton Graham

As in many states, it has long been the law in Washington that a party in open, notorious, “hostile” possession of another’s land for a certain period of time (generally 10 years) might become the owner of that land, so long as the party can establish facts that meet the common-law test for adverse possession. In a development of interest to anyone who may become a party to such a suit, the Washington legislature recently amended provisions of the Revised Code of Washington (Chapter 7.28, RCW) containing procedural requirements for these lawsuits.

House Bill 1026, which becomes effective today, states that a party prevailing in an adverse possession claim against the holder of record title may be required to pay taxes for the land adversely possessed. It also authorizes a court deciding such a claim to “award all or a portion of costs and reasonable attorneys’ fees to the prevailing party if, after considering all the facts, the court determines such an award is equitable and just.” This law, which applies to actions filed on or after July 1, 2012, will raise the stakes in future adverse possession litigation because a costs and fees award could be part of the relief granted by the court, as well as an order to pay several years worth of taxes for the land adversely possessed.

While a prior version of this Bill proposed changing the standard of proof for adverse possession claims to “clear, cogent, and convincing evidence,” this provision was not part of the final act.