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We had our property surveyed before we built a fence. Turns out our neighbor's fence is on our property. It is built 7 ft in at the back and runs the length of the lot line to 6" in at the front. Essentially they have about 500 square feet of our property. They claim a fence (which they have recently replaced) has been there since they bought the property in 1994. However, we live in Washington State and I noticed something about them having to pay taxes on that land during the time of their "adverse possession" in order to claim it. They have not done that, the previous owner of our lot paid the taxes, and we currently do. Is this true?

Update: We have discovered that the new (4 year old) fence they installed does not exactly follow the previous fence's position. They actually moved the fence even further onto our property, skewing the whole line about a foot further our way... presumably to avoid (and include) at tree. They left other landscaping features, rocks, edging, plants in place showing how much the fence shifted our direction. Because the new fence is not on the same line...does that affect their claim?

We first contacted them months ago about this, asking them to move or remove their fence. Since then, we have had no contact. They have made no move to formally claim the land. However, they seem to be preparing to put their house on the market. Should we wait until they do and then approach the listing agent/new buyers about the problem so they are informed of how much land they are actually buying/selling?

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    The "clock" on adverse possession doesn't start when someone squats on your property; it starts when you find out about it. – Wes Sayeed Aug 7 '17 at 8:28
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    It's not simply about "finding out", it's more about whether you SHOULD have found out and tried to do something about it to protect your property rights. There are specific WA appellate decisions on this (e.g., Howard v. Kunto). – Upnorth Aug 8 '17 at 23:32
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    In Howard v. Kunto, both parties "paid taxes" on their parcels, not realizing until 28 years later that Kunto's house was actually built on Howard's deeded lot and Kunto had been paying taxes on another adjacent lot. Kunto was granted adverse possession. – Upnorth Aug 8 '17 at 23:47
  • Another update: We have asked our neighbor to provide proof of the existence and position of the "previous" fence he claims to have replaced with the more recent one. He has been unable to do so... now what? If he cannot prove that the previous fence existed in the position and for the duration he claims are we in the clear? – user15549 Feb 10 '18 at 4:41
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If a trespasser openly and notoriously, exclusively and continuously possesses your property by building a fence on your land for the right time period, they automatically own the land. It still takes a court proceeding to record the passing of title (the trespasser has to prove in court that it is legally theirs). The trespasser would also have to establish that the recent survey was correct (survey errors do exist): was there an earlier survey in connection with the fence that established different boundaries?

If (as it turns out) this has become his property, he abstractly has title to it, but only you and he know about it. The trespasser may have an interest in officially changing the property description, because it will officially increase the size of his lot and thus the value of the house+land. This also will increase their tax burden (while decreasing yours). The county has no knowledge of the fence: they go off of the official record, which says that you own that wedge. You also may have an interest in changing the property description, primarily to reduce your tax bite. There could also be issues with your resale of the property, since a mortgage company may require a survey of the property. Whether or not that is bad is hard to say: the consequence could be that the buyer is alerted to the fact that the lot is smaller than advertised and so on; in the current market I doubt anyone would care. If the fence goes away and you start using the land, then it will officially revert to you after a while.

If you catch the party and complain within 10 years, you may recover the property (RCW 7.28.010). The limitations statute says that

The period prescribed for the commencement of actions shall be as follows: Within ten years: (1) For actions for the recovery of real property, or for the recovery of the possession thereof; 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.

That ship has (apparently) long since sailed. There is a different law pertaining to "Adverse possession under title deducible of record" which shortens the limit to 7 years, which is even less useful to the original owner. RCW 7.28.070 also shortens the time limit for an adverse possession case, to 7 years:

Every person in actual, open and notorious possession of lands..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 ... the legal owner of said lands

There is another (more recent) tax-related provision, RCW 7.28.083.

(1) A party who prevails against the holder of record title at the time an action asserting title to real property by adverse possession was filed, or against a subsequent purchaser from such holder, may be required to:

(a) Reimburse such holder or purchaser for part or all of any taxes or assessments levied on the real property during the period the prevailing party was in possession of the real property in question and which are proven by competent evidence to have been paid by such holder or purchaser;

This does not require them to have paid taxes, it say that the victor in the dispute may nevertheless be ordered to reimburse taxes paid by the other party (assuming the other party has paid the tax). So there is some chance of getting the taxes back. The reimbursement is at the court's discretion (continuing that section):

(2) If the court orders reimbursement for taxes or assessments paid or payment of taxes or assessments due under subsection (1) of this section, the court shall determine how to allocate taxes or assessments between the property acquired by adverse possession and the property retained by the title holder. In making its determination, the court shall consider all the facts and shall order such reimbursement or payment as appears equitable and just.

One should also pay attention to the last provision in that statute:

(3) The prevailing party in an action asserting title to real property by adverse possession may request the court to award costs and reasonable attorneys' fees. The court may 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.

That means that the victor can request the loser to pay his attorney's fees. This is delicate math, balancing the chance of recovering some paid taxes vs. paying the other guy's costs. You could try calling the assessor to find out how much the decrease in lot size might net you (the land vs. improvement proportion of taxes is all over the map in KC, easily ranging from 60% to 250% depending on year).

One additional feature of adverse possession is that it must be "hostile", i.e. without permission. If a neighbor builds on your land, you can explicitly give them revocable permission (to avoid "no you didn't" arguments, explicit and revocable written permission, signed by the neighbor, would bar an adverse possession claim).

This raises an interesting question, to which I don't know the answer. Suppose the prior owner gave permission to the fence builder, and did not demand the removal of the fence when he sold the property or right after the neighbor sold his property (there was only on act of granting permission). Does the clock start from your acquisition of the property (whereupon the element of hostility is satisfied)? Or does it start from the point where they acquired the property and were in hostile possession of the land (I would bet a quarter that that's the answer).

If (or, given that) the fence was moved further onto your property more recently, there is a chance to recover the newly-taken piece of land. If you grant them revocable permission to build a fence on your property, you would not be subject to an adverse possession taking for the newly-taken land. If at some point you tell them to tear down the fence and they refuse, you can sue them and the court will (almost certainly) order the removal of the fence. The neighbor might then initiate an action to quiet title on the originally-taken piece of land, so you'd be back to where you were 4 years ago.

From a practical perspective, this is well-worth the small amount of money involved to consult with an attorney to get legal advice. The legal matter probably will not go away quickly, and they may be presently inclined to settle in a manner more in your favor.

  • The fence doesn't extend the entire length of the property line...at the back there is about a 20 ft length which is unfenced, with no structures...that area to the correct property corner could be considered ours still? – K.O. Aug 6 '17 at 19:49
  • Also, the recent survey matches the original plot map filed with the county. Would they have to survey again to prove their case? – K.O. Aug 6 '17 at 19:51
  • The two known surveys would suffice. I guess that the modified boundary line would be the shortest one from the end of the fence to the original property line. – user6726 Aug 6 '17 at 20:04
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    @user6726 Because adverse possession grew out of the law of trespass and the statute of limitations, the "clock" on hostile possession could not possibly begin until it became actionable. In theory, once the statute of limitation expires on the "trespass", the squatters not only get to stay, they also get title to that part of the property. – Upnorth Aug 11 '17 at 4:03
  • Wonder what the clock is in Texas for something just like this? – mark b Sep 29 '17 at 18:55

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