October 2013 Bar Bulletin
 
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October 2013 Bar Bulletin

The Perilous Fringe of Boundary Disputes

By Robert W. Zierman

 

Whether long lost to the halcyon days of one's 1L Property class or yet remembered, the law of adverse possession is, as the late eminent property scholar William B. Stoebuck1 claimed, "an anomaly in the law whereby a legal right is obtained through conduct which must be wrongful."2

This is because persons who do not have the right to lands, but who are able to go in and take lands - the act of disseisin - and hold onto those lands for the statutory period without the title owner forcibly squawking about it become entitled to those lands. But does adverse possession really work that way?

The answer is generally not. At least in urban residential settings, the prototypical adverse possession problem is a mistake. It is a mistake that runs something along these lines.

A perceptible boundary is established, which seems in most cases to be the result of the placement of a fence. Now while that fence might gracefully be placed flush to the line of the persons who had it built (because those people were also sufficiently prudent to hire a surveyor to locate their boundary line(s) before erecting the fence), in those situations that later become boundary disputes this has not occurred. Instead, no surveyor was hired and the fence lies on one side or the other of the titled boundary line.3

Then, sometime down the line, lo and behold, it is discovered that the titled property line and the fence don't match up after all. Go figure. The question then becomes whether to sharpen hatchets for the "self help" approach of taking down the fence; seeking attorneys to sharpen their quills; or, perhaps to really assure the point is brought home to one's neighbor, do both.

Just to put it out there for those who do find the legal component of this interesting, regardless of who is the plaintiff or the defendant, once title holders present evidence of their title, it is then the burden of adverse possessors to prove that they have met the elements of adverse possession. By way of quick review, those elements are actual possession that is: (1) open and notorious; (2) hostile; (3) exclusive; and (4) held continuously for the statutory period, which is almost always 10 years per RCW 4.16.020.4

That being said, this is not a primer about adverse possession. The author acknowledges that there are some (rare) situations where side yards, backyards or some other zoning requirement mean that a reduction of land at the fringe (i.e., boundary) will significantly diminish the value of - or the ability to later develop - one's property. Yet, this article also does not seek to explore these situations.

Instead, this article deals with the numerous "other issues" surrounding boundary disputes in which no rational outside observer can comprehend the reason for the "knife fight." From this author's perspective, anyone who is seeking the legal force afforded by taking their adverse possession or quiet title matter to the courts5 is staring right down at ... well, let's let Hal Holbrook as senior broker Lou Mannheim in the 1987 movie "Wall Street" explain it.


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