September 11, 2012
The doctrine of adverse possession provides that title to real property may be acquired, without an affirmative conveyance thereof, if the claimant takes actual and uninterrupted possession of the property, intending to claim it as his own to the exclusion of the true owner, and makes an outward showing of such claim for a sufficient period of time. See 2 C.J.S. Adverse Possession § 1 (Westlaw database updated May 2012); Weinstein v. Hurlbert, 2012 ME 84, ¶ 8, 45 A.3d 743, 745; Whetstone Baptist Church v. Schilling, No. SD 31412, 2012 WL 3094954, at *5 (Mo. Ct. App. July 31, 2012) (not yet released for publication).
Back in law school, I recall learning about adverse possession and thinking to myself that this ancient doctrine was probably just an academic exercise that would not have much practical application in today's world. But as Bart Simpson says, "Au contraire mon frère!" In the years since law school, I have worked on a great many adverse possession cases. Most often, the dispute concerns whether the claimant's possession was sufficiently hostile or open and notorious. See, e.g., Weinstein, 2012 ME 84, 45 A.3d 743 (holding that adverse possessors' use of property was not hostile and notorious). And just when I thought there were no new issues to be raised regarding the doctrine, I once again stand corrected.
Virtually all jurisdictions hold that adverse possession does not apply against the State, which oftentimes includes the political subdivisions thereof. See 2 C.J.S., supra, §§ 9, 16; e.g., Houck v. Huron County Park Dist. Bd. of Park Comm'rs, 116 Ohio St. 3d 148, 2007‑Ohio‑5586, 876 N.E.2d 1210. And the State of Washington is no exception: "[N]o claim of right predicated upon the lapse of time shall ever be asserted against the state." Wash. Rev. Code ("RCW") 4.16.160.
That rule sounds simple enough, right? Well, the Supreme Court of Washington was recently asked whether RCW 4.16.160 bars a quiet title action against a municipality asserting title to real property by adverse possession where the claimant alleges that he adversely possessed the property while it still belonged to a private individual and before that private individual conveyed the property to the municipality. See Gorman v. City of Woodinville, No. 85962-1, 2012 WL 3516888 (Wash. Aug. 16, 2012) (en banc).
James Gorman, the record title owner of a certain parcel of real estate, alleged that he had acquired title to an adjacent parcel of real estate by adverse possession prior to December 2005, the time when the subject property was dedicated to the City of Woodinville by the record title owner. The City had identified the property as a necessary part of a capital improvement plan for improving a busy intersection to alleviate vehicle congestion and address safety concerns. Some 19 months after the dedication to the City, in July 2007, Gorman decided to initiate the instant quiet title action against the City.
The City moved to dismiss the complaint for failure to state a claim upon which relief could be granted, asserting that the claim was precluded by RCW 4.16.160. The trial court granted the City's motion and dismissed the claim, but the Court of Appeals of Washington reversed and remanded the case to the trial court for a determination of the validity of Gorman's claim. The City appealed the intermediate court's decision to the supreme court. In a unanimous decision, and as a matter of first impression, the supreme court allowed the adverse possession claim to proceed against the municipality.
Rejecting the City's arguments, the supreme court observed that "Gorman is not asserting a claim 'predicated upon the lapse of time'—the type of claim barred by RCW 4.16.160—as against the City" but, rather, is asserting that "the requisite period of time already ran against the private owner." Id. ¶ 9 (court's emphasis). But cf. Houck, 116 Ohio St. 3d 148, 2007‑Ohio‑5586, 876 N.E.2d 1210, at ¶ 9 (because the county park districts were immune from adverse possession, the sale of the property to the park districts effectively terminated the claimant's continuous possession prior to the expiration of the statutory period, and thus the adverse possession claim failed).
Once title is acquired by adverse possession, it cannot be divested except by those means recognized to transfer title, e.g., deed, will, or adverse possession. See Gorman, 2012 WL 3516888, ¶ 10. In other words, once the statutory "period has run, the [adverse] possessor is vested with title and the record owner is divested." Whetstone Baptist, 2012 WL 3094954, at *5. And thus Gorman was not required to bring the instant lawsuit prior to the City's acquisition of the property, because, if title had already been acquired by Gorman prior to the dedication to the City, then an earlier quiet title action would have merely clarified what was already the case—that Gorman, rather than the private party purporting to dedicate the property to the City, owned the subject real estate.
And because the private party from whom Gorman had acquired title by adverse possession did not have title to the property at the time he purported to dedicate the property to the City, the City acquired nothing thereby. See 26 C.J.S. Dedication § 7 ("No one except the owner of an unlimited estate or an estate in fee simple, or someone expressly authorized by such an owner, can make a dedication of land." (footnotes omitted)); 26A C.J.S. Deeds § 245 ("No matter how property in a deed is described, a deed may convey only property that was owned by the grantor.").
Although the decision in Gorman was unanimous, it was not without what I would term a "quasi-dissent." Chief Justice Barbara A. Madsen concurred in the judgment and result based on the current state of the law, but she made an impassioned plea for the state legislature to curtail, if not wholly abandon, the doctrine of adverse possession. In short, Justice Madsen reasoned as follows:
Many of the beneficial purposes the doctrine is said to serve do not justify the doctrine in modern times. Moreover, the doctrine's basic premise is legalization of wrongful acquisition of land by "theft," conduct that in our time we should discourage, notwithstanding the possibility of putting land to a higher or better use. The doctrine also creates uncertainty of ownership, lying as it does outside documents in writing and the recording statutes. I encourage the legislature to seriously consider phasing the doctrine out, at least where the adverse possessor has no colorable title or good faith belief in ownership of the land.
Id. ¶ 15 (Madsen, C.J., concurring). As illustrated by the facts of the instant case, the City's laudable project (improving a busy intersection to alleviate vehicle congestion and address safety concerns) has been, at best, significantly delayed and made much more expensive and, at worst, precluded altogether.
Rather than just pointing out the deficiencies of adverse possession, Justice Madsen offers some solutions for fixing them. For instance, several other western jurisdictions have legislatively curtailed the doctrine to combat the "theft" aspect of traditional adverse possession by imposing an additional requirement that the adverse possession claimant have a good-faith belief that he or she owns the property in question. Minnesota has gone even further, providing that recordation of one's deed stands as an absolute defense to adverse possession. Finally, Justice Madsen notes an even more drastic solution, albeit one that has yet to be adopted by any jurisdiction: "to require the adverse possessor to pay for the land at a reasonable price, and so protect the record title holder with a liability rule rather than offering the record title holder no protection at all." Id. ¶ 28 n.3 (citing Jeffrey Evans Stake, The Uneasy Case for Adverse Possession, 89 Geo. L.J. 2419, 2445 & n.115 (Aug. 2001) (citing Thomas W. Merrill, Property Rules, Liability Rules, and Adverse Possession, 79 Nw. U. L. Rev. 1122, 1145-54 (1984))).So perhaps my instincts in law school were not that far off, and the doctrine of adverse possession is indeed an antiquated concept that should no longer be followed? And perhaps I was just a little ahead of my time.