What do you do when you learn the old fence that you and your neighbor thought was the correct boundary turns out to be wrong … or when you discover your house or garage has been constructed on your neighbor’s property? Such disputes can trigger Washington’s legal doctrines for establishing a real-property boundary outside the conventional legal description in a recorded deed.

In Washington, boundaries between adjoining properties that are at odds with the true boundary may be established through several legal doctrines, including (i) adverse possession; (ii) parol agreement of adjoining landowners; (iii) equitable estoppel, also known as estoppel in pais; (iv) location by a common grantor; or (v) mutual recognition and acquiescence in a definite line by the interested parties.[1] Each of these doctrines relies upon the specific facts of the case, so it is crucial to understand the elements of the doctrines as well as the facts necessary to support a claim.

Adverse Possession

To establish a claim of adverse possession, the claimant has the burden of proving, by a preponderance of the evidence, that the claimant’s possession is: (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile for a period of ten years.[2]

A claimant can satisfy the open and notorious element by showing either: (1) that the title owner had actual notice of the adverse use throughout the statutory period, or (2) that the claimant used the land such that any reasonable person would have believed they owned it. Hostility requires that the claimant treat the land as their own against the world throughout the statutory period. If the use of another’s land is open, notorious, and adverse, the law presumes that the record owner has knowledge or notice.[3] When a person adversely possesses real property for 10 years, such possession can ripen into an original title.[4]

Adverse possession can also be established in just seven years if the claim is “under claim and color of title.”[5] To rely on this shorter possession period, the claimant must show they had a claim to the land and a deed or other title document purporting to have transferred ownership to the claimant. The claimant had to have relied upon that title document in good faith and must openly possess and pay real property taxes related to the property for at least seven years.

Parol Agreement

The doctrine of parol agreement is essentially an oral agreement to establish a boundary line.[6] To prevail on a claim that a claimant entered a parol agreement with the neighboring landowner, the claimant must establish there was an: (1) oral, express agreement, (2) between the property owners, (3) to permanently resolve a boundary dispute or uncertainty, (4) followed by actual or constructive possession.[7] Establishment of a parol agreement requires showing there was an express meeting of the minds to resolve the dispute or uncertainty permanently, by recognizing a definite and specific line as the true and unconditional location of the boundary.[8] This meeting of the minds must provide a “permanency and specificity of the agreement resolving the dispute or uncertainty.”[9] Mutual recognition and acquiescence for the full ten-year period of time to acquire property by adverse possession is not an indispensable element of the doctrine.[10] However, inherent in the doctrine is the requirement to establish some aspect of acquiescence to demonstrate that sufficient possession of the property occurred to provide constructive notice to successors.[11]

Equitable Estoppel (Estoppel in Pais)

The doctrine of equitable estoppel rests on the principle that a person should not be permitted to deny what they once solemnly acknowledged. Equitable estoppel entails three elements:

1. An admission, statement, or act inconsistent with the claim afterward asserted;
2. Action by the other party on the faith of such admission, statement, or act; and
3. Injury to such other party that resulted from allowing the first party to contradict or repudiate such admission, statement, or act.[12]

Courts disfavor equitable estoppel, so a claimant must prove each element with clear, cogent, and convincing evidence. Under some circumstances, Washington courts regard intentionally deceptive silence as an act for estoppel purposes. The party’s silence must have operated as a fraud, must have been intended to mislead, and must have actually misled. In addition, the party who kept silent must have known or had reasonable grounds to believe the other party would rely and act upon their silence.

The burden of proof rests upon the party that invokes the estoppel.[13] Absent fraud or misrepresentation, estoppel runs only to those who have reasonably relied upon another’s acts or representation and had a right to rely on those acts or representations. Silence or acquiescence will not operate to work an estoppel where the other party has constructive notice of public records which disclose the true facts, or when both parties can determine the law and have knowledge of the underlying facts.[14]

Boundary Created by a Common Grantor

In general, a grantor who owns land on both sides of a line established as the common boundary is bound by that line. The line will also be binding on grantees if the land was sold and purchased with reference to the line, and there was a meeting of the minds as to the identical tract of land to be transferred by the sale. The common grantor doctrine involves two questions: (1) Was there an agreed boundary established between the common grantor and the original grantee; and, (2) if so, would a visual examination of the property indicate to subsequent purchasers that the deed line was no longer functioning as the true boundary?[15] A formal, specific, or separate contract that establishes the boundary line between the parties is not necessary. An agreement or meeting of the minds between the common grantor and original grantee may be shown by the parties’ manifestations of ownership after the sale.[16] Also, it is not necessary that every grantee, from the time the boundary is determined, agrees that the claimed line was the boundary line. Absent other circumstances, once an agreed boundary is established between the common grantor and the original grantee, it is binding on subsequent purchasers as long as a visual examination of the property indicates the deed line is no longer functioning as the true boundary.[17]

Boundary Created by Mutual Recognition and Acquiescence

A party who claims title to land by mutual recognition and acquiescence must prove: (1) that the boundary line between two properties was “certain, well defined, and in some fashion physically designated upon the ground, e.g., by monuments, roadways, fence lines, etc.”; (2) that the adjoining landowners, in the absence of an express boundary line agreement, manifested in good faith a mutual recognition of the designated boundary line as the true line; and (3) that mutual recognition of the boundary line continued for the ten-year period necessary to establish adverse possession. These elements must be proved by clear, cogent, and convincing evidence. To meet this standard of proof, the evidence must show the ultimate facts to be highly probable.[18]

In Merriman v. Cokeley, the court held that three widely spaced survey stakes, which had been overgrown by weeds and blackberry bushes, did not serve as a sufficiently clear, well-defined demarcation of the boundary line to support the plaintiff’s claim of a boundary established by mutual recognition or acquiescence.

Construction of Structures Across a Boundary Line

At common law, an encroachment onto another’s property was a trespass, and the property owner had a right to seek removal of the encroachment, regardless of the cost to the encroaching party.[19] As a result, an entire structure might have to be demolished because one wall encroached a few inches onto another’s property. This was known as the “property rule.” To mitigate the sometimes harsh or unjust results of the rule, the courts transitioned to the “liability rule”; whereby, in certain cases, damages could be awarded in exchange for a legal property right.[20]

In order to take advantage of the liability rule, the encroaching party must demonstrate that:

1. The encroacher did not simply take a calculated risk, act in bad faith, or negligently, willfully, or indifferently locate the encroaching structure;
2. The damage to the landowner was slight and the benefit of removal equally small;
3. There was ample remaining room for a structure suitable for the area and no real limitation on the property’s future use;
4. It is impractical to move the structure as built; and
5. There is an enormous disparity in resulting hardships.[21]

In Proctor v. Huntington, the parties discovered that, because of a mutual mistake in understanding the meaning of various survey stakes, the Huntington’s had built their house, well, garage, and yard entirely on the Proctor’s property. The Proctors sought removal of the Huntington’s structures.

The Washington Supreme Court held that an injunction should not mechanically follow any encroachment.[22] Instead, the key question was whether, in equity, it would be fair and just to require removal of the structures, which entailed a comparison of the detriments to each party.[23] As a result, the Court ordered the Huntington’s to pay the Proctors $25,000 to purchase the land where their structures were located.

Remedies for Encroachments

Several possible remedies may settle encroachments and boundary line disputes, including the following:

• Filing a quiet title lawsuit; for example, to pursue a claim of adverse possession or to establish a boundary by acquiescence. A party could also bring a suit in equity, per RCW 58.04.020(1), that asks the court to establish a lost or uncertain boundary.
• Negotiating an easement or a license to address the encroachment. The easement could be perpetual or terminable at some future point; for example, when the current owner leaves the dominant estate. Similarly, a license could be personal to the current encroaching party and could be written to terminate once the encroaching party left the premises and require restoration of the correct boundary line before conveyance to another party.
• Purchasing the property subject to the encroachment.
• Pursuing a lot line adjustment to adjust the boundary line to an agreed upon location.
• Entering into an agreed boundary agreement as provided in RCW 58.04.007, which allows a neighboring property owner to address a boundary line that is disputed or cannot be identified by existing public records, monuments, or landmarks. The parties enter into a written agreement with appropriate legal descriptions and a survey map signed and notarized by each party and recorded. The agreement runs with the land and is binding upon the parties, and their heirs, successors, and assigns.

Additional Considerations

It is worthwhile to check with the jurisdiction where the boundary issue arose to understand the jurisdiction’s preferred processes. Some local governments have taken aggressive positions to control boundary line adjustments. For example, Clark County imports its nonconforming lot provisions into its review of boundary line adjustments. In doing so, the county will disallow any reduction in size of a lot that preexisted the implementation of the zoning and minimum lot size requirements. Clark County contends this restriction can be avoided through an adverse possession claim or through a government action—meaning eminent domain—but not through any other means. According to Clark County, a court order resolving or adjudicating a boundary line or quiet title dispute would not be sufficient. Furthermore, the county contends a mutual adverse possession claim that results in an even exchange of land would not be allowed either. In that circumstance, Clark County maintains, each lot size is changing shape, and thus at least one lot is becoming smaller in some dimension, thereby increasing that lot’s nonconformity contrary to the nonconforming code provisions. Moreover, because each landowner receives land from the other, the transaction is not truly “adverse.” Instead, in Clark County’s opinion, each lot owner is receiving land from the other as consideration for the land that is relinquished, and the transaction is purely a mutual sale of land, not a settlement of mutual adverse possession claims.

Clark County’s strict interpretations of municipal code require landowners that encounter these issues to submit a Type II lot reconfiguration application rather than a Type I boundary line adjustment. The difference between Type I & Type II applications is substantial. A Type I boundary-line-adjustment application in Clark County costs approximately $400 in permitting and issuance fees for two lots and currently can be accomplished in one to two weeks. A Type II lot reconfiguration application currently costs approximately $2,100 in permitting, SEPA, and issuance fees, requires a public hearing, and generally takes six months or more to accomplish.

[1] Lamm v. McTighe, 72 Wn.2d 587, 591, 434 P.2d 565 (1967).
[2] ITT Rayonier, Inc. v. Bell, 112 Wn.2d 754, 757, 774 P.2d 6 (1989); RCW 4.16.020.
[3] Nickell v. Southview Homeowners Ass’n, 167 Wn. App. 42, 50–51, 271 P.3d 973, 978–79 (2012).
[4] Id.
[5] RCW 7.28.070
[6] Piotrowski v. Parks, 39 Wn. App. 37, 40, 691 P.2d 591 (1984).
[7] Id.
[8] Johnston v. Monahan, 2 Wn. App. 452, 457, 469 P.2d 930 (1970).
[9] Id.
[10] Id. at 458.
[11] Id.
[12] Id. at 53-54.
[13] Id.
[14] Id. at 56-57.
[15] Winans v. Ross, 35 Wn. App. 238, 240–41, 666 P.2d 908, 911 (1983).
[16] Id. at 241.
[17] Id. at 242.
[18] Merriman v. Cokeley, 168 Wn.2d 627, 630–31, 230 P.3d 162 (2010).
[19] Proctor v. Huntington, 169 Wn. 2d 491, 497, 238 P.3d 1117, 1119–20 (2010).
[20] Arnold v. Melani, 75 Wn.2d 143, 449 P.2d 800 (1968).
[21] Id. at 152.
[22] Proctor, 169 Wn.2d at 502.
[23] Id. at 502-03.