It is possible, but in my experience unlikely, that adverse possession
occurred over a 10 year period because of a fence, but then the fence is
later taken down and the property line remains as established by the fence
line. In addition we see these types of assertions made time and time again
when there is new construction. Most neighbors are not thrilled about new
construction and some will make wild assertions to put up roadblocks. Get
legal counsel. There is a lot more that need be said and should be said by
your counsel but not in this forum.

Nathan

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Nathan Sukhia

Attorney at Law

Law Office of Nathan Sukhia, PLLP

5801 Soundview Dr., Ste. 50-C

Gig Harbor, WA 98335

Phone: (253) 509-0625

Fax: (253) 509-0765

nathan@gigharborlaw.net

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You need to contact a real estate attorney today! Since they are making the claim, you probably need to file suit to quiet title if your attorney believes you still retain ownership. Best of luck.

In Washington, a property owner may obtain title to adjoining property via "adverse possession." In general, to prove adverse possession, a claimant must demonstrate that they possessed the disputed property in a manner that was: (1) exclusive; (2) open and notorious; (3) hostile; and (4) actual and uninterrupted for a period of 10 years. The 10-year period can be reduced to 7 years in some limited circumstances. To complicate matters, many of these elements may operate very different in practice than their terms imply. For example, the term "hostile" typically means nothing more than possession without the permission of the title owner.

The application of the above elements is very fact specific and will depend upon your particular circumstances. Given the limited facts provided in your question, and the many nuances of this area of the law, it is not possible to fully answer your question here.

For example, an attorney will want to know the historical condition of your property. Inasmuch as you are currently building your residence, was your property previously vacant? In general, there is a rebuttable presumption that the element of hostility is not established for property that is vacant and undeveloped. An attorney will also want to know the type of property involved, because this doctrine may apply differently on urban versus rural land. An attorney may also want to see historical photos of the property (especially those depicting the fence) and a title report. The title report might disclose if the disputed property is burdened by an easement for the benefit of the public, which may also prevent application of the doctrine of adverse possession. In summary, because of the degree of nuance involved, I suggest that you speak to an attorney regarding this matter as soon as possible.

Additionally, based upon your description, it appears that your neighbors are asserting that their 10-year period of uninterrupted possession occurred prior to your purchase nine years ago. If your neighbor sued to quiet title to the disputed property under a theory of adverse possession, you may be able to argue that the claim is barred by the doctrine of “laches.” This doctrine applies where there has been a lapse of time and other circumstances causing prejudice to the adverse party. In other words, it may be inequitable for your neighbors to sit idly by for nine years without asserting a claim for adverse possession, only to do so once construction of your residence has already commenced.

Because you are currently constructing your home, your neighbors may believe that they have considerable leverage against you to force some compromise or to stop your project altogether. As an attorney, my strategy would be to apply as much counter leverage as possible. If your neighbors did file a lawsuit, I might consider trying to convince the judge to require your neighbors to post a bond to protect you against significant financial losses in the event that you prevail. Such losses might include increased construction costs from any delay in construction, loss of financing, loss of use of your new residence, etc. Because this amount could be substantial, your neighbors might think twice about pursuing their claim.

Finally, I would put your neighbor on warning that, if you prevailed against their claim for adverse possession, you may be entitled to recover your attorney’s fees, which could also be substantial. See RCW 7.28.083. Additionally, under this same statute, even if you did not prevail, your neighbors might still be required to reimburse you for all of the back taxes and assessments that you have paid on the disputed property over the years.