Changes in Washington Practice Report (#14) / Is it time for adverse possession to go?

March 26, 2014

Washington State LawThis is installment #14 in a continuing series of Changes in Washington Practice Reports.

Adverse possession is a well-established principle of law in Washington State. But in a recent case, it has been argued at length that it is time for the legislature to change the situation. The cite given below is based on a recent reference in Washington Practice.

In this case, a private owner deeded land to a city (Woodinville) in 2005. Two years later, another person (Gorman) stepped forward to claim title in the land through prior adverse possession.

In response, the city sought to dismiss the claim by Gorman.

In part, the city relied on a statute that prevents adverse possession from being applied against a city.

Gorman counter-argued that the adverse possession had run before the property was deeded to the city, and thus the protective statute did not apply.

This case was resolved by the Washington Supreme Court. The Court reviewed Washington law on adverse possession and concluded that—because the adverse possession period had ended before the transfer to the city—the transfer could not be upheld if Gorman could validate his claim of title.

The Court found that the transfer could not take place from someone who no longer owned the property.

In his concurrence, Justice Madsen included a detailed argument in favor of having the legislature abolish adverse possession in Washington.

As he noted, adverse possession is intended to “assure maximum utilization of land…” and provide a means for “quieting titles”.

It is based on a “philosophy that…land use is favored over disuse….”

However, Justice Madsen argued that “there is little justification today for legal rules that force the use of land….”

As he noted, “(W)e have prohibitions on the development of land needed for habitat…(various) designations…(and) conservation…. Further, the government “pays people not to use their land to plant crops….”

“Thus, less or nonproductive land uses can be desirable….”

It will be interesting to see if the legislature agrees with these arguments, and chooses to eliminate (or modify) adverse possession in Washington.

This case is listed as Gorman v. City of Woodinville, 175 Wash. 2d 68…and was noted in the 2013 pocket part to Real Estate: Property Law by Stoebuck and Weaver, volume 17 of Washington Practice.

Attorneys can search for needed resource materials by reviewing the individual volumes of Washington Practice, or by starting with the summaries and search strategies available in Methods of Practice.

For additional information regarding the extracts, summaries and other legal resource materials to be found in Methods of Practice, refer to volumes 1 to 1C of Washington Practice, by Cheryl Mitchell and Ferd Mitchell of Mitchell Law Office.