Skip to content Property Rights at Risk


Search Publications

July 2011

Property Rights at Risk

A recent decision by the State of Washington Supreme Court has potentially universal application in putting property rights at risk of being trumped by notions of fairness and equity.  In essence, a good faith trespasser can acquire an ownership interest in another's property by building permanent improvements that encroach on another's land.

The Washington Supreme Court's decision in Proctor v. Huntington, 169 Wash 2d 491; 238 P.3d 1117 (2010) should cause commercial and other property owners pause.  The court found that an encroaching neighbor may be entitled to his neighbor's land, (even without adverse possession).  Proctor undermines the property rule that a trespassing party is subject to ejectment.

Proctor purchased 30 acres in the early 1990's.  The Huntingtons, owners of a neighboring parcel, built a home, garage and well with the consultation of a surveyor.  Unfortunately, the surveyor was a bit off.  Unbeknownst to the Huntingtons their improvements encroached 400 feet onto Proctor's land.  In 2004, Proctor hired a surveyor to perform and draw a complete property survey.  The survey showed that the Huntingtons' improvements were on Proctor's property.  Proctor sued the Huntingtons to quiet title and remove the Huntingtons' improvements from Proctor's property.  The Huntingtons filed a counterclaim arguing adverse possession.

Because the Huntingtons had only possessed the property for 8 years (instead of the required 10 in Washington; 5 years in California) the adverse possession claim was rejected.  However, the trial court found that the Huntingtons acted in good faith and that injunctive relief requested by Proctor requiring the Huntingtons to remove the structures "would be oppressive... and inequitable."

As an "equitable solution," the trial court ordered Proctor to sell the Huntingtons the acre of land upon which they had built their home and other improvements at the fair market value of $25,000. Proctor unsuccessfully argued that the Huntingtons' improvements constituted an absolute encroachment upon his property—not a slight encroachment by a few inches or feet.  The Washington Supreme Court agreed with the trial court's ruling based on notions of "equity, flexibility and fairness," in place of a healthy respect for property rights.

The Court reasoned that the expense of relocating an entire home, garage and well was too great a burden.  It proclaimed that "we recognize the evolution of property law in Washington away from rigid adherence to an injunction rule and toward a more reasoned, flexible approach."  To add to the confusion, the Court declared that "[n]othing in our holding today undermines fundamental property rights: it remains true that a landowner may generally obtain an injunction to eject trespassers.  Proctor does not forfeit the right to his land, nor do the Huntingtons get something for nothing."

Proctor reminds us of the importance of active participation in a passive investment.  A so-called good faith improver on your land may acquire an ownership right in your property and "fair market value" compensation may be illusory compensation for lost square footage and possible loss of development rights.

Real Estate

Real Estate