The Law of Good Neighbors: The Future of Adverse Possession

Pretend you are in the wild, wild West, 150 years ago. Your heart's desire is to be a farmer, but you have no land. The rich land baron down the road has lots of land, so much he doesn't use all of it. And rich guy isn't home too much. So much land, and nobody's looking . . .

So what do you do? You might set up housekeeping on some unused land, build a barn, put up some fences, and plant a crop. And if you managed to use the land for 10 years without rich guy evicting you - well, congratulations. You're a land-owner.

That, in a nutshell, is the law of "adverse possession," as well as an example of why we have the law in the first place.

Adverse possession is an ancient law which promotes active use of land. In an agricultural or forest economy, it doesn't pay to let land lie fallow, so the government rewards this type of open land-grab. Plus, in days of yore it was hard to tell where boundaries really were (some old deeds read like pirate maps), so it made sense to give title of land to the guy who was actually using it.

Okay, fast-forward to today. The law of adverse possession is still on the books. Oh, you don't get many squatters these days (for starters, you'd have to get a building permit for that barn), but you do get boundary disputes. Lots and lots of boundary disputes.

Say you own 20 acres in rural Clark County, and you hope to build a new building or perhaps sub-divide. So you hire a surveyor, and dang it! Looks like your neighbor's old fence is 15 feet into "your" land. Depending on how long that fence has been up (and some other factors I won't go into here), you could lose a strip of your land.

Think that's no big deal? What if the only buildable spot on your land is along that strip? What if you won't have a legal setback without that strip? What if you can't subdivide because your lot is now too small? Add to that the huge emotional attachment people have to land, and you've got trouble. Plenty of lawyers spend plenty of time litigating boundary disputes.

Boundary disputes are especially problematic in an area like Clark County, which has seen a tremendous transition from agriculture to residential uses in the last 20 years. An additional issue is that modern surveys are much, much more accurate (think GPS). The result is lots and lots of boundary disputes, lots and lots of lawsuits based on adverse possession.

But this ancient system may be coming to an end. There is a bill pending in Washington to eliminate adverse possession lawsuits. See HB 1479. And it could make a big difference to some Clark County land owners. See The Columbian, February 8, 2009.

The Columbian article refers to a 2008 Boulder, Colorado, law which did not abolish adverse possession but does make it more difficult to prove. The Boulder law seems to have been passed in response to a (possibly) calculated adverse possession claim made by (of course) two lawyers. See Daily Camera, April 26, 2008.

Other than the Columbian article, there is really no analysis of HB 1479 in the media. But this little bill could forever change the legal tradition of centuries. Keep an eye on it.

As always, this is a blog, not legal advice. Also, I do not practice in the area of boundary disputes, but I would be happy to refer to good attorneys who do.