Yesterday, I had the pleasure of testifying in front of the Senate Judiciary Committee regarding ESHB 1026. In that testimony and in my follow-up answers to questions posed by Judiciary Committee Chairman Senator Adam Kline (D) – 37th Legislative District and Senator Mike Carrell (R) – 28th Legislative District, I advocated for the addition of a Good Faith Element instead of changing the evidentiary standard from a Preponderance of the Evidence to Clear, Cogent, and Convincing. Please see my written argument to this effect here.

However, in the past Courts did “look into the minds” of adverse possessors. Yet, in 1984 this practice was stopped by the Supreme Court case Chaplin v. Sanders, 100 Wn.2d 853, 676 P.2d 431 (1984). So, why would it be appropriate to “go back in time?” Well, the answer is we would not be. Let me explain.

In 1960, newly minted attorney, William B. Stoebuck – who went on to become one of America’s premier Real Property scholars – wrote what would be the first of many law review articles and treatises in property law. The article’s name was both simply and aptly named: “The Law of Adverse Possession in Washington,” 35 Wash. L. Rev. 53 (1960). Below, is the totality of the Good Faith section within it [which can be found at p. 83].

    Color-of-title and vacant-land statutes.Boththe color-of-title and vacant-land statutes require “color-of-title made in good faith.” As used in these statutes, “good faith” seems to mean that the adverse claimant, has an honest belief that his colorabletitle document is genuine, though a paucity of cases makes generalizations difficult. It seems certain that his actual knowledge that someone else is the true record owner will prevent good faith. And though it is not clear on the point, one case seems to say there is not good faith if the colorable document is received from a person who then has pending against him an action to contest his legal right to the land. There is, however, dictum in a case that notice of another’sclaim of interest, which the adverse claimant in good faithbelieves to be ill founded, does not destroy good faith. [Footnotes not included.]

So what of Stoebuck’s memborable quip: “Since a man cannot by thoughts alone put himself in adverse possession, why should he be able to think himself out of it?”

Well, if we look above this quote to the top of the paragraph on p. 80 of his article, we find a clue in another seemingly damning statement for this Good Faith Element champion. It is this: ‘Perhaps the reader will agree that the law would have been clearer and in the long run more useful to the people if Washington had never gone into the “subjective intent” business at all.’

As it turns out though, in 1960 Stoebuck was looking at a miserably confused law in which as he indicates there was both “negative intent” and “positive intent.” Often based on the same (or at least very similar facts) a statement signifying intent could completely change the outcome of a trial.

The primary example that Stoebuck offers is from Brown v. Hubbard, 42 Wn.2d 867, 259 P.2d 391 (1953). In that case the putative adverse possession failed by simply offering the testimony: “No. I wouldn’t take her property, had I known it.” This is an example of “negative intent.” In other words, the adverse possessor did not intend to own the land.

Then, beyond this was the problem of demonstrating that one had “affirmative intent” to own the land. Hmm? That sounds a lot like the element of Hostility, which at present does not mean enmity or ill will, but rather that one claims the land superior to all others.

So, a degree of “residual intent” does remain within the doctrine of adverse possession after all. Interesting, don’t you think?

At any rate, the question that Stoebuck wanted to get around was how should intent be proved? To this issue Stoebuck indicated that Brown v. Hubbard’s requirement to identify intent was being ignored by the Courts. Instead, “subjective intent” (not Good Faith) was being “inferred from the possessor’s acts.” [See Adverse Possession in WA p. 79.]

Well, fast forward a quarter of a century from Chapman v. Sanders and the law of adverse possession, due to the elimination of “subjective intent”, is no longer “a jungle so tangled and matted.” [See Adverse Possession in WA p. 78.] Instead, we have land thieves who move monuments with the hope that no one will really notice their foul until they can call it out to others for the purpose of expanding their land.

Well, very much like a science project in which we have a greater sense of that which we are observing once we have changed a single variable, the removal of “subjective intent” has allowed a clarification of all the other elements of adverse possession and the doctrine itself. So, now is the time to add something markedly different than that which Stoebuck was confronting in 1960.

It’s time to add something sufficiently potent to stop land thieves. It is simply Good Faith.