Adverse Possession And Open Space

by | Aug 4, 2021 | Articles, Real Estate Law

Adverse Possession has long been part of the common law in our state and across the country.  A person may gain ownership of real property pursuant to the doctrine of adverse possession, based on use of another’s property. The use must be:

  1. Open and Notorious
  2. Actual and Uninterrupted
  3. Exclusive
  4. Hostile (used as the owner would use it; not with permission of the owner); and
  5. For a period of at least ten (10) years

All of the five (5) elements must be met to claim property by adverse possession.   The absence of even one element negates an attempted adverse possession.

A common form of adverse possession involves a fence placed on a line different than the legally described boundary between two properties, which is treated as the boundary by both parties for more than ten years.  Adverse possession can also occur where there is no fence, but one party is using a property as if it were that party’s property.

The State of Washington values greenbelts and open spaces.  To preserve such spaces, the legislature enacted RCW 36.70A.165, which states:

Property designated as greenbelt or open space – Not subject to adverse possession.

The legislature recognizes that the preservation of urban greenbelts is an integral part of comprehensive growth management in Washington.  The legislature further recognizes that certain greenbelts are subject to adverse possession action which, if carried out, threaten the comprehensive nature of this chapter.  Therefore, a party shall not acquire by adverse possession property that is designated as a plat greenbelt or open space area or that is dedicated as open space to a public agency or a bona fide homeowner’s association.

Emphasis Added.

The types of property protected from adverse possession by RCW 36.70A.165 are:

  1. land designated as a Plat greenbelt;
  2. land designated as a Plat open space area;
  3. land dedicated as open space to a public agency; and
  4. land dedicated as open space to a homeowner’s association

Even if a party used the land in an open and notorious, actual and uninterrupted, exclusive, and hostile manner for more than ten years, they cannot gain ownership of that land by adverse possession.  County plat maps can be consulted online for reference, but if you have questions regarding adverse possession and possible open space, contact a real estate attorney.