SENATE BILL REPORT

SB 5110

BYSenators Pullen, Niemi, McCaslin, Rasmussen and Barr

Regulating adverse possession.

Senate Committee on Law & Justice

Senate Hearing Date(s):January 16, 1989; February 8, 1989

Majority Report:  That Substitute Senate Bill No. 5110 be substituted therefor, and the substitute bill do pass.

      Signed by Senators Pullen, Chairman; McCaslin, Vice Chairman; Madsen, Nelson, Newhouse, Niemi, Rinehart, Thorsness.

Senate Staff:Ben Barnes (786-7465)

                  February 15, 1989

AS REPORTED BY COMMITTEE ON LAW & JUSTICE, FEBRUARY 8, 1989

BACKGROUND:

Adverse possession is a method of acquiring title by possession and use of property for a specific time period under certain conditions.  A claimant must show that such possession was:  (1) exclusive; (2) actual and uninterrupted; (3) open and notorious; (4) hostile; and (5) under a claim of right made in good faith.

Concern exists that the concept of adverse possession may no longer be justified by current public policy considerations.  It is suggested that the common law doctrine of adverse possession be modified and limited to ensure that private ownership of property is not easily lost.

SUMMARY:

A plaintiff under an action to quiet title may obtain title and possession when there is a mistake of fact by both the plaintiff and the legal owner of real property as to the correct boundary lines.

A plaintiff under an action to quiet title may obtain title and possession of real property when the legal owner, but not the plaintiff, knows the correct boundary lines of the property.  As a condition to obtaining title and possession, the plaintiff must pay the fair market value and any property taxes paid by the legal owner attributable to the period of time when the plaintiff was in possession of the property.

A plaintiff under an action to quiet title may not obtain title and possession of real property when:  (a) both the plaintiff and the legal owner know the correct boundary lines, or (b) the plaintiff, but not the legal owner, knows the correct boundary lines.

The plaintiff has the burden of proof to establish his or her right to possession of real property by adverse possession.

Definitions for the common law elements of adverse possession are added.

EFFECT OF PROPOSED SUBSTITUTE:

The court is required to award reasonable attorneys' fees to a prevailing defendant.

The definition of the term "exclusive" is deleted.  All subsequent references to the term are deleted.

Appropriation:    none

Revenue:    none

Fiscal Note:      none requested

Senate Committee - Testified: Dr. Ole Jensen (pro); Ray Nelson (pro); Hans Egger (pro)