gray-large.pngI think it is important to create more clarity in adverse possession law. While I have advocated for Good Faith and I have also considered whether we should look at who took possession first between the adverse possessor and the title holder here. As I really think the situation through, the most important point is stopping people from altering boundaries on the ground. So with respect to ESHB 1026, this is what I would propose …

Section 1: In claims of adverse possession, the adverse possessor shall have the burden of proving by a preponderance of the evidence that the adverse possessor has not manipulated the physical boundary line during the adverse possessor’s ownership, possession, or control.
By this the adverse possessor will generally remain entitled to the land under the same legal framework unless acting as a land thief. The title holder remains protected for the regular Statutory Period and gains an acceptable legal edge against good faith adverse possessors – which should be construed as an acceptable societal loss – in exchange for cramping down on land thieves. Moreover, the burden of proof would remain the same and thus not throw existing jurisprudence into question.
Notably, the statute’s first section should be grandfathered in so that real estate agents and brokers can advise their clients going forward to document the land’s boundaries at the time of purchase by photo or survey as may be appropriate. This is much preferable to a sudden shift in the law which would take people unaware.
Also, it seems like it would be appropriate to define “control” in relation to the purchase of the property. More fully, at the time of purchase did the adverse possessor reasonably and honestly believe that the demarcated boundaries were his or hers? [I guess this is where the concept of Good Faith is creeping back into my analysis after all.]
A new Section 2 might then allow costs and reasonable fees if the title holder can prove by a preponderance of the evidence that the adverse possessor (or the adverse possessor’s predecessor in interest as known to the adverse possessor) had in fact moved the physical property boundaries.
Then the current Section 2 provision about paying for tax assessments could come in as Section 3. Does that meet the 4-Way Test?gray-small.png