Prescriptive easements and adverse possession are real estate law doctrines by which a party (usually a neighbor) obtains rights and title, respectively, to another’s land not by a written easement or deed arising out of a voluntary transaction, but by the claimant’s use of that land over a long period of time.  Generally speaking, that use must be – over at least ten years – open, continuous, and adverse to the landowner.  What those words mean and which party (the landowner or the claimant) must prove what is the subject of extensive and acrimonious cases – no one likes losing ownership or control of their property without having signed an easement or deed.

My friend, attorney Robert Zierman, has proposed that the adverse possession statute be amended to disallow adverse possession if the landowner can show that the claimant did not act in good faith.   As it now stands, the law does not take notice if the claimant wrongfully or in bad faith uses adverse possession to take his neighbor’s land.

In the meantime, the Washington Supreme Court recently issued an opinion – Gamboa v. Clark – that upholds the landowner’s right to his property.  In this case, the Gamboa’s claimed a prescriptive easement over a road on the Clark’s property.  After many years of sharing the road, the Clark’s had closed the road to the Gamboa’s after a dispute (over dogs and irrigation) escalated between the parties.  The Gamboa’s claim hinged on whether their use of the road was presumed to be “adverse” to the Clark’s.  If so, the Clark’s would have to prove that they gave the Gamboa’s express permission in order to defeat the claim – something they probably never did simply out of good neighborliness.

The Court instead held that the presumption lay with the Clark’s:  “an initial presumption of permissive use applies to . . . cases in which there is a reasonable inference of neighborly sufferance or acquiescence.”  Indeed this seems to be a fair result.  Why should landowners like the Clark’s be penalized for sharing use of their property with a neighbor without a written easement?  Perhaps the Gamboa’s should have appeased their neighbor a bit more, knowing they did not own the road they were using.

As for the bigger picture, this opinion makes it perilous to rely on prescriptive easement rights instead of obtaining, through negotiation, a written easement that would survive a dispute among neighbors over matters unrelated to use of the easement area.  And if this opinion leads to similar outcomes in favor of landowners in adverse possession cases, claimants could consider negotiating a boundary line adjustment with their neighbors – which is probably cheaper than taking a case to the Supreme Court.