Understanding Adverse Possession of Designated Forestland

Whether you’re a native Washingtonian or more recent transplant, you’ve probably noticed the great emphasis placed on the protection of Washington’s beautiful forestland, as well as the promotion of sustainable forest practices. Indeed, property owners can reap the benefits of their commitment to these practices by designating their property as forestland.   

However, like any other type of land, questions about property ownership can arise between neighbors even when the land involved is forestland.  

If you believe that your neighbor may be using land that’s rightfully yours, or if you need to claim adverse possession yourself, it’s important to understand exactly what that entails and how to effectively make a claim or defend against it. If the land involved is forestland, there are additional statutory requirements which change key element of adverse possession, making such a claim clearer cut but, consequently, harder to prove.  

Read on to learn more about the designated forestland status and the impact that this designation has on making and defending a claim for adverse possession.  As with all of the content on our website, this article is for educational purposes only and is not a substitute for legal advice.  

What is Designated Forestland?          

A forestland designation can be obtained through your county assessor’s office. In brief, you must show that your land is primarily used for growing and harvesting timber, with some allowances for land that contains the faculties necessary to produce, prepare, or sell timber products. You must also commit to complying with all forest practice laws and regulations. If forestland status is granted, you will enjoy significant financial benefits such as a lower assessed value of your property and, as a result, lower property taxes.  

If you’d like to learn more about designated forestland status, or if you’re interested in submitting an application for your property, the Washington Department of Revenue has created a helpful information sheet on this topic: https://dor.wa.gov/sites/default/files/2022-02/designatedforestland.pdf. Because navigating the intricacies of any kind of bureaucratic process, you may also consider hiring counsel to facilitate your application. The law professionals at Holmquist and Gardiner can help gather and submit your materials and communicate with the assessor’s office during the application process, including handling any appeals of a denied application.           

Adverse Possession of Designated Forestland  

Now that you know a bit more about the forestland designation, you’re likely wondering what to do if you need to make or defend a claim for adverse possession of forestland. After all, that’s probably how you ended up on this article. 

First and foremost, if you are the claimant and live in a rural, heavily forested, or otherwise underdeveloped area, it is a good idea to confirm whether the property you are seeking to possess is designated forestland. You can easily access this information by performing a property search on your county assessor’s website.  

Once you’ve confirmed the forestland status of the land or, if you already know that your land is forestland, you can assess whether you (or the adverse party) can meet the requirements of adverse possession under Washington State law.  

Open and Notorious:   

The key difference between a general adverse possession claim and a claim for adverse possession of forestland lies in the definition of “actual and open” possession.  

For adverse possession of non-forestland property, there are a myriad of ways to demonstrate “open and notorious” possession of someone’s property, including (among other things) planting trees, consistent and conspicuous landscaping, and using the land for recreation. As you can imagine, this can be a tricky, fact-dependent analysis.  

When the land involved is designated forestland, there is a specific standard to proving “open and notorious” use of the land, which is set out in RCW 7.28.085. To show “open and notorious” use forestland, the claimant must construct a permanent or semi-permanent structure for which the cost of construction was at least $50,000. The structure must remain in part or whole on the land for at least ten years.  

While Washington courts have not considered what types of structures would meet this definition, it can be reasonably inferred that structures such as a home, cabin, or barn would meet this requirement. The specificity of this requirement is helpful regardless of what side you’re on, as it makes the question of “open and notorious” possession more clear cut. If you visit your property regularly, you would almost certainly notice if a new building or other substantial structure appeared.  

Continuous: As previously mentioned, the structure must remain continuously on the property in whole or in part for the statutory period of ten years.

Exclusive: The claimant uses the property as if they are the true owner, excluding others, including the legal owner and the public, from possessing or using the property.  

Non-permissive: The claimant’s possession and use of the property must be without the permission of the legal owner of the property. The claimant cannot have permission to build on the land. If the owner gives permission, the use is “permissive,” and this element cannot be met.  

Exceptions to Heightened Standards 

It is important to note that there are two exceptions to the application of the heightened “open and notorious” requirements. If either of these are present, the standards of RCW 7.28.085 do not apply. 

First, the requirements do not apply if you, or your neighbor, own less than 20 acres of forestland in Washington at the time an action is commenced. It is necessary to confirm the parcel size of the subject land in order to avoid any confusion.  

Second, the heightened requirements do not apply to a claimant who establishes that they have occupied the land for at least ten years in good faith reliance on location stakes or other boundary markers set by a surveyor, which establish the boundaries of a property to which they have record title. 

Ultimately, a claim for adverse possession can be tricky regardless of what side you’re on. The law professionals at Holmquist + Gardiner are experienced in the areas of land use and real estate and can help you navigate this process.  

We’ve helped land owners on both sides of the aisle in adverse possession disputes and understand the emotions that are felt by both parties when a piece of their property is in question. We understand the nuances of the law and know how to gather the facts necessary to build a strong, legally sound claim. We’ll work with you to develop an efficient, effective plan of action and will advocate for you in these often emotionally charged disputes. 

If you have any questions about adverse possession, contact a real estate attorney at Holmquist + Gardiner anytime. We are here to help!