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Adverse possession is a law which allows an owner of land to do two things (1) disallow stale claims for the ownership of the totality of the property and (2) to claim ownership of land which is beyond the titular bounds of a legal description as determined by surveyors after having conducted a retracement survey.

Obviously, people hate to find out that they don’t own what they thought that they actually had. There has to be a mechanism to discourage people from coming out of the wood-work to claim property which, though perhaps at one time they would have had some interest in, no longer can claim to have any. Here, I think you can envision ex-spouses or surviving relatives.

Now you might think that this should be covered by title insurance companies who will make it all correct. The fact of the matter is that most of the time, the remedies which a title insurance can employ is paying money. So, without the doctrine of adverse possession there is a higher likelihood that you will (a) lose your house, and if not (b) lose money in a “shakedown” by someone besides your neighbor who purports to have an interest in it.

The additional problem though would be that title insurance companies would have much less if any footing to sort out your problems. So, if they were able to sort things out, the premium would go way up. On the other hand, they had no mechanism for making corrections, they would simply go out of business.

That in turn would through the whole real estate industry upside down. The risk of purchasing a home would go up considerably and to assure that this risk would be covered, mortgage lenders would require a much greater equity stake. This in turn would drive down sales of real property.

Basically, the idea of eliminating the doctrine of adverse possession is a non-starter. 

That said there is a huge flaw that adverse possession currently allows when considering how its doctrine effects laws at the boundaries with neighbors. Since 1984, the law of adverse possession has allowed people who purposefully sought to take the land of their neighbors away to have just as much rights as people who do not. 

This all leads to what becomes most contentious about this area of the law, the thought that adverse possessors are “land thieves.” Well over the course of my practice, I have witnessed those who want to use adverse possession to convert (i.e. the civil equivalent of theft) their neighbors land. 

However, this occurs fairly rarely. Instead, it is most often the case that somewhere up the chain of title a problem occurred and now for some reason a surveyor is called out and low and behold the boundaries that the neighbors observe and the bound identified by the legal descriptions don’t match. 

Well, its high time for the law to recognize that these are two very different situations and address them as such. For the second case, adverse possession as it currently is composed is perfectly appropriate. For those that think it isn’t, the only real mechanism to play with is the prescriptive period. As note on this though, California is 5 years whereas other areas are often 20 years. So at 10 years, we in Washington State are somewhere in between.

However, to stop the “land thief” the best idea would be to move from a situation, as is the case now, where it doesn’t matter whether it was a “wrongful” act or not, so long as all the requirements of adverse possession are met. 

No, instead it is time to add a rebuttable presumption of good faith for the claimant of adverse possession. 

What this would do is allow a title holder who can prove that the claimant of adverse possession had wrongly acted to nullify the claim and thereby regain possession and retain full property rights in his or her titled property.

Yet, the other effect of this would be to help lawyers better explain that a claimant of adverse possession, similar to an alleged criminal, is innocent – which again is most oftentimes the case – until proven guilty. The only difference is that the burden of proof is more favorable to the title holder in that he or she just has to offer sufficient evidence to cross the threshold of a preponderance of the evidence instead of beyond a reasonable doubt that the claimant of adverse possession is the wrongdoer.justice-smiles-green.png