Disability Tolling of Adverse Possession

Disability Tolling of Adverse Possession

 --An Everett, WA Real Estate Attorney's Answers to Common Questions about Disability Tolling

1. What are "adverse possession" and "disability tolling"? Adverse possession is when someone gains another person's land by occupying the real estate for at least ten years without the owner's permission.

If the owner is "disabled", however, the adverse possession period does not begin to run. Washington real estate attorneys call this "disability tolling". The landowner's disability tolls or stops the adverse possession clock.

2. What is a "disability" in this context? In this context, disability usually means the owner is one of the following: a minor (not an adult), imprisoned, or mentally incompetent. An owner can also be disabled due to military or war circumstances, due to the owner's concealment, or due to a law or injunction preventing the owner from filing a court action against the adverse possessor.

3. Does a temporary disability permanently stop adverse possession? No, a disability only delays the beginning of the adverse possession period. Once the disability ceases, the adverse possession clock can start. Consider this example:

• An adverse possessor has been using a stretch of land for ten years. The landowner was a minor for the first five of those years, but not the second five. The adverse possession clock would currently be at five years.

4. What happens if the disability starts during the middle of the adverse possession period? A disability does not toll the adverse possession clock if the disability occurs after the clock has already begun. The law considers a disability only if it existed at the time adverse possession otherwise would have begun. Consider this example:

• An adverse possessor starts using land when no disabilities are present. The landowner then passes away and leaves the real estate to a minor. The new owner's minority will not toll the adverse possession clock.

5. What happens if there is more than one disability when the adverse possessor starts using the land? Does the adverse possession clock start running once the first disability ceases or once all the disabilities cease? The adverse possession clock will be tolled so long as any of the original disabilities remain.

6. What happens if one disabled landowner conveys the land to another disabled landowner? Would the adverse possession clock be tolled during both landowners' disabilities? Oddly, it appears the second landowner's disability would not toll the the adverse possession clock. The adverse possession clock would begin soon as the original landowner conveyed the property, regardless the second landowner's situation. This seems like an unjust outcome, however; and it would not be surprising if a good attorney were able to successfully argue for new legal precedent on this issue.

7. Is death of the landowner a disability? No, death of the landowner is not a disability; but courts will sometimes take the death into consideration. If a landowner dies just prior to the tenth year of adverse possession, the estate's personal representative is granted at least one year to file a quiet title action against the adverse possessor. A quiet title action is a means of stopping adverse possession before the adverse possession claim becomes enforceable.