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Oral Agreements and Adverse Possession - A Case Law Update

Posted Thursday, April 28, 2016 by Christopher L. Thayer

Land Survey


In LeBleu v. Aalgaard, Division III of the Washington Court of Appeals addressed whether an oral agreement regarding a boundary between two lots could affect the “hostility” element in an adverse possession claim. In LeBleu, seller sold two adjoining 20 acre lots in the 1990s, one to a Mr. and Mrs. Deno and the other to Aalgaard. Deno an Aalgaard walked their lots and measured and established where they thought their respective boundary was located. The parties orally agreed on the location of the boundary, which was important because Deno was assisting the Aalgaards in the construction of their residence.

In 2012, the LeBleus purchased the Deno property and had their property surveyed. They discovered the Aalgaards’ home, barn and shed were located on the LeBlues’ property. A lawsuit was filed to quiet title to this section of property and to eject the Aalgaards’ from their lot. The Aalgaards’ counter-sued claiming adverse possession. The trial court found the Aalgaards’ use of the LeBleu lot was “permissive” and adverse possession did not apply. The appeal followed.

To establish a claim of adverse possession, a party's possession of property must be: (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile and under a claim of right. Chaplin v. Sanders, 100 Wn.2d 853, 857, 676 P.2d 431 (1984). All of these elements must exist concurrently for at least 10 years. RCW 4.16.020. Because courts presume that the holder of legal title is in possession, "the party claiming to have adversely possessed the property has the burden of establishing the existence of each element." ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989).

Hostility "'does not import enmity or ill-will.'" Chaplin, at 857 (quoting King v. Bassindale, 127 Wash. 189, 192, 220 P. 777 (1923)). The "hostility/claim of right" element of adverse possession requires only that the claimant treat the land as his own as against the world throughout the statutory period. The nature of his possession will be determined solely based on the manner in which he treats the property. His subjective belief regarding his true interest in the land and his intent to dispossess or not dispossess another is irrelevant to this determination.

Here, it was undisputed that Mr. Deno told the Aalgaards that they would own whatever property fell on their side of the agreed property line. The Court of Appeals held this did not show “permissive use” but to the contrary, finding:

The undisputed evidence is of an agreement that each family would own the land on their side of the agreed line – perpetual, exclusive use, necessarily adverse. Because the agreement in this case was for mutually adverse use at its inception, no notice of a distinct change in use was required.

The Court of Appeals in this case went through a tortured analysis to get to this result, but this may well relate to an unspoken consideration of the equities. Given that the Aalgaards would have been required to remove substantial improvements, including their barn, shed and a portion of their house, it seems that perhaps the court was looking at the practicalities of the parties’ relative position. As noted by a concurring opinion by Justice Fearing, “few legal doctrines cause more confusion than the doctrine of adverse possession.” Justice Fearing encouraged the legislature to take this opportunity to provide some clarity – whether his request is heeded remains to be seen.

Photo credit: Hugo Chisholm, used under the Creative Commons license.