AN ACT Relating to adverse possession; amending RCW 4.16.020, 7.28.050, and 7.28.070; and adding new sections to chapter 7.28 RCW.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION. Sec. 1. The legislature recognizes that for many years the public policy in England and the United States has been to encourage the maximum utilization of real property. This public policy has in part been developed and expanded by the common law concept of adverse possession. Adverse possession is the legal doctrine whereby the nonpermissive occupation of another's land for a specified time period bars the legal owner from possessing or recovering the land.

The legislature finds that adverse possession is an anomaly in the law which, in some circumstances, is no longer justified by public policy considerations. National, state, and local governments have found it beneficial to encourage open spaces and greenbelts. The legislature finds that it is no longer a desirable social policy to punish the true owner of property for the nonuse of his or her property.

The legislature also recognizes that modern technology, surveying techniques, and recordkeeping by governmental entities have evolved in such a manner that the legal ownership of land is no longer in doubt. The true ownership of property is easily determined and mere possession of real property by a trespasser should no longer be the basis for a true owner losing the right to retain the ownership of his or her property.

The legislature recognizes that the ownership of property is one of the most basic and fundamental rights of our citizens. Private ownership of land is a precious right which distinguishes our government from other forms of government throughout the world. Such a right should not be easily lost or discarded.

Therefore, the legislature determines that the common law doctrine of adverse possession must be modified and limited to ensure that private ownership of property is not easily lost or destroyed.

NEW SECTION. Sec. 2. Unless the context clearly requires otherwise, the definitions in this section apply throughout this chapter.

(1) "Actual possession" means possession of a character and manner which a true owner would assert toward the property in view of its nature and location. This term retains its common law meaning as developed by the Washington supreme court.

(2) "Uninterrupted" means continuous possession of the property. The term retains its common law meaning as developed by the Washington supreme court.

(3) "Notorious" means possession that is open and obvious and of such a nature that a true owner has actual or constructive knowledge of the use of the land. The term retains its common law meaning as developed by the Washington supreme court.

(4) "Tacking" mean combining the time of possession of the plaintiff to the time of possession of a prior possessor of the property when there is privity between the plaintiff and the prior possessor of the property.

(5) "Hostile" means possession and use of the property in such a manner that, considering the character of the possession and the locale of the property, would normally be objectionable to the true owners of the property.

(6) "Legal owner" means the person who is legally entitled to possession of the property because of a deed or some other documentary conveyance.

NEW SECTION. Sec. 3. (1) An action for the recovery or possession of real property when the plaintiff does not have legal title to the property may be commenced when the plaintiff has been in actual possession of the property for ten or more years and such possession is hostile, uninterrupted, and notorious.

(2) A plaintiff may obtain title and possession of real property under the provisions of subsection (1) of this section when there is a mistake of fact by both the plaintiff and the legal owner of the property as to the correct boundary lines of the property.

(3) A plaintiff may obtain title and possession of real property under the provisions of subsection (1) of this section when the legal owner of the property, but not the plaintiff, knows the correct boundary lines of the property. The plaintiff, as a condition to obtaining title and possession, must pay the legal owner the fair market value of the property and any property taxes paid by the legal owner attributable to the period of time when the plaintiff was in possession of the property. The court shall establish the value of the property and the amount of taxes owing.

(4) Notwithstanding the provisions of subsection (1) of this section, a plaintiff 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.

(5) The plaintiff has the burden of proof to establish his or her right to possession of real property under this section.

(6) The common law doctrine of tacking is preserved.

Sec. 4. Section 2, page 363, Laws of 1854 as last amended by section 1, chapter 76, Laws of 1984 and RCW 4.16.020 are each amended to read as follows:

The period prescribed for the commencement of actions shall be as follows:

Within ten years:

(((1) Actions for the recovery of real property, or for the recovery of the possession thereof; and no action shall be maintained for such recovery unless it appears that the plaintiff, his ancestor, predecessor or grantor was seized or possessed of the premises in question within ten years before the commencement of the action.

~~(2)~~)) An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States, or of any territory or possession of the United States outside the boundaries thereof, or of any extraterritorial court of the United States.

Sec. 5. Section 1, chapter 11, Laws of 1893 and RCW 7.28.050 are each amended to read as follows:

That all actions brought for the recovery of any lands, tenements or hereditaments of which any person may be possessed by actual, ((~~open~~)) hostile, uninterrupted, and notorious possession for seven successive years, having a connected title in law or equity deducible of record from this state or the United States, or from any public officer, or other person authorized by the laws of this state to sell such land for the nonpayment of taxes, or from any sheriff, marshal or other person authorized to sell such land on execution or under any order, judgment or decree of any court of record, shall be brought within seven years next after possession being taken as aforesaid, but when the possessor shall acquire title after taking such possession, the limitation shall begin to run from the time of acquiring title.

Sec. 6. Section 3, chapter 11, Laws of 1893 and RCW 7.28.070 are each amended to read as follows:

Every person in actual, ((~~open~~)) hostile, uninterrupted, and notorious possession of lands or tenements under claim and color of title, made in good faith, and who shall for seven successive years continue in possession, and shall also during said time pay all taxes legally assessed on such lands or tenements, shall be held and adjudged to be the legal owner of said lands or tenements, to the extent and according to the purport of his or her paper title. All persons holding under such possession, by purchase, devise or descent, before said seven years shall have expired, and who shall continue such possession and continue to pay the taxes as aforesaid, so as to complete the possession and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section.

NEW SECTION. Sec. 7. In an action under this chapter for adverse possession, the court shall award any prevailing defendant his or her reasonable attorneys' fees.

NEW SECTION. Sec. 8. Sections 1 through 3 and 7 of this act are each added to chapter 7.28 RCW.