Below please find the most important parts of the new law for those who want a quick overview of changes. My attempt is to provide some of the most important information about the formation of the new law and its likely effects.
The New Adverse Possession Law – What it is and what it is not?
First, the proposed new adverse possession bill contemplated that only title holders would be awarded reasonable attorneys fees and costs if prevailing at trial. Well, this was a non-starter, so the language was changed to the “prevailing party”.
Second, the proposed new adverse possession bill originally contemplated that the fact-finder would be able to determine whether or not costs and attorneys fees should be shifted. But, because these are actions that are mixed law and fact, an area that juries quite arguably should not be allowed to touch, the proposed law was changed to allow Courts to determine what appeared just.
Third, the propsed new adverse possession bill contemplated a shifting of the burden of proof to clear and convincing, which was then changed to clear, cogent and convincing (as if that mattered). Well, this I argued would allow attorneys to second guess past cases in which adverse possession was found. The result would be considerable chaos in the already considerable body of Washington State, Adverse Possession jurispurdence. So, this provision (fortunately) got knocked out of the bill.
Fourth, the proposed new law allowed judges to order that the adverse possessor is to pay the disenfranchised title holder, the county recorders office, or some combination of both – if applicable – for the taxes that the title holder has paid for the land while the adverse possessor held it. In the grand scheme of a land fight, this is a triffling matter. However, this did become law. Fine.
Fifth, the new law, allows trial courts to award costs and reasonable attorneys fees when it appears just. Noticeably, this actually is a right that the courts already have. However, they have not exercised it. So, hopefully what the new law does is provide a virtually unanimous signal from the Legislature that something needs to be done to make Adverse Possession more just.
The New Adverse Possession Law – What Does it mean to Me?
The new Adverse Possession law will take effect for all cases filed on or after July 1, 2012. Because of this, there might be advantages and disadvantages as to how you proceed in your case.
First, if it appears that your neighbor is the one that can be easily painted in the “black-hat” and the statutory period is not about to run on your claim, it might be best to postpone for a year.
Conversely, if you are a land-grab artist. You better consider getting your claim in now.
Regardless, the new law does not mandate that trial courts provide reasonable attorneys fees and costs under any circumstances. This will likely mean that some courts will shift costs and fees and some will not. Regardless if the answer is one way or the other, it is likely that some of these decisions will then be challenged by losing parties.
So, don’t think that the law of adverse possession is going to change overnight. But, at least in the beginning before the contours of how cost shifting is fully worked out, there will be more indecision about how an adverse possession case will be resolved in court.
One can only expect that this will drive more people to consider much more carefully how they will proceed in a boundary dispute matter. And if that in turn means that people – who would otherwise “go to the mattresses” – decide to talk things through … well then this law will have some positive effects even at its outset.
Bottom line, the new adverse possession law probably means that you and your neighbor ought to act more neighborly toward one another when confronted with a potential boundary dispute.
Update 2012.01.30: Since initial posting, I have occassion to look more carefully at the language of RCW 7.28.083. Of interest is the fact that this statute is put into play upon the claim of adverse possession – not simply the action to quiet title.
As there are other methods, albeit undeveloped as to their jurisprudence, to allow land adjustments without the need to comply with writting requirement purportedly mandadated per Washington State’s Statute of Frauds [RCW 19.36.010(5)], the result is that the adverse possessor is placed in the driver’s seat as to whether this statute may be considered by the court. Interesting!