Adverse possession and public property

People acquire property—and lose property—by adverse possession when certain facts have been present for more than ten years. The facts center on the possessor’s use and occupation of the “true” owner’s property. The use may have been by a prior possessor.

I have addressed the elements in a previous post. The purpose of this post is to alert readers to a recent Washington Supreme Court case that addressed an adverse claim of public property.

The general rule is that public property cannot be acquired by adverse possession. RCW 4.16.160.

This question recently wound its way through the court system: what if a governmental entity acquires property that had previously been acquired by adverse possession? Can the governmental entity use the statutory defense to defeat someone’s adverse possession claim to the land?

The Supreme Court of Washington answered no.

Where a party has perfected an adverse possession claim prior to the governmental entity’s acquisition of the property, the cause of action as to ownership is not barred. Gorman v City of Woodinville, 175 Wn.2d 68, 283 P.3d (2012).

The rule follows from the reasoning that title acquired by adverse possession is inchoate title. It automatically vests in the possessor (and is passed to the possessor’s successors!) upon the passage of a ten year period of open, notorious, exclusive, hostile, actual and uninterrupted use. The possessor is not obligated to due to perfect his interest: the quiet title action merely confirms that title to land has passed to the adverse possessor.

Before walking away from an adverse possession claim to public land, it is important to identify the date the possession started and the date the public acquired title. Is there a chance that the possession ripened into ownership before the transfer to the public entity?

 

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