black-big.pngBack in August, one of my clients sent the concurring opinion of Washington Supreme Court Chief Justice Barbara A. Madsen for Gorman v. City of Woodinville. Justice Charles K. Wiggins also penned his name to this concurrence. The question my client appeared to ask was: ‘now that there is a call from two members of the high bench to eliminate adverse possession, would I have a better chance if I bring a quiet title action against my neighbors?’

Gorman was represented by Catherine C. Clark, a respected real property litigator, and the City of Woodinville was represented by Greg Alan Rubstello, who practices municipal and labor law at Ogden Murphy and is no doubt also quite well respected. [Should any of you be interested in watching their prowess, check out oral arguments here.]

Gorman’s claim was to have perfected his title to land by adverse possesion’s 10-year statute prior to the city’s purchase of the land. To its credit, the trial Court, then Judge [now Supreme Court Justice] Steven C. Gonzalez, granted the city’s summary judgment motion. I believe this positive because, this allowed the legal issue to be determined without going through the needless expense of a trial only to later find out that it was not necessary. [This also accounts for the fact that current Justice Gonzalez recused himself from the case.] 

As summary judgments are reviewed de novo (as opposed to for an abuse of discretion), Ms. Clark was on an even footing as she successfully advanced Gorman’s argument against Woodinville.

Ms. Clark on Gorman’s behalf conceeded that while it is true that individuals can not adversely possess against governments, in this instance Gorman claimed to have perfected his title prior to the government taking possession. As a result, he was wrongly denied the opportunity to carry his burden of proof to demonstrate that this had occurred.

As a policy matter, I think this case (in its main oppinion) was correctly decided. The question I would be wanting to have answered is which is going to be cheaper: (a) requiring governments to insure their land acquisitions similar to commercial land acquirers; or (b) require governments to provide proper notice to adjoiners at the time of acquisition so that there is adequate time to make an adverse possession claim. At present, this might be considered ten years from the time of the government’s acquisition as a “double cross” of adverse possession against the adverse possessor.

What? Well by that I mean that if someon has gained (by perfection, and not yet legal recognition) their property by adverse possession – that land can be taken right back away from them if a new 10 year period of time elapses in which the “disenfranchised” title holder rests back control of the land for a 10 year period.

Returning, the concuring opinion may have circumscribed itself to making suggestions within the realm of choice (b) – to require governments to provide proper notice to adjoiners at the time of acquisition so that there is adequate time to make an adverse possession claim. Instead, the suggestion is that adverse possesssion be thrown out all together.

OK, this might be what ultimately happens. But if so, let’s look at what else needs to be considered. Here are some initial thoughts.

First, don’t allow real estate agents to check a box on the purchaser’s offer form which indemnifies not only the buyer’s agent but the listing agent as well from any issues related to the boundaries of the land.

Second, require that a survey that meets American Land Title Association (ALTA) standards be performed or waived prior to each sale of property.

Third, require all fences be errected only after a survey has been performed both before and after for the purpose of confirmation of where a fence should be placed and where it actually is placed or in lieu of this have people sign a covenanted agreement with their neighbor which runs with the land (i.e. is passed down through the chain of title) in which they acknowledge that upon discovery of the true boundary line by a professional land surveyor, they will replace the fence and under what terms.

Perhaps these are good ideas. But what the legislature came up already is RCW 7.28.083. And what that legislation appears to indicate (at least to me) is that courts should do what they do best, make decisions on the case by case situations that are presented to them and award attorneys fees as deemed most appropriate. Those cases are going to be where the matter borders on frivolity, is spiteful, is opportunistic or some combination thereof.

I have noted that RCW 7.28.083 yet needs to be improved; as currently worded only the adverse possessor is in a position to put it into play. That said, I am not convinced that a wholescale retreat from adverse possession is going to be the most appropriate approach. We should note that the statute, which serves as a statute of limitations, also serves as the bulwark for prescriptive easements.

It is abused at times. However, its primary purpose is to prevent people from the past from coming in and making a claim to land that they have not used in a sufficiently long period of time.

The doctrine is not fundamentally wrong, it is fundamentally flawed. RCW 7.28.083 if properly used by the Courts will assists in correcting those wrongs. This is because people will think first about bringing their claims and if they do they will later be punished where they should not have done so.

What is unsettling is that right now, people don’t know where those discretionary lines are. For this reason, it would be great if the Supreme Court again accept an adverse possession case and seek to provide that