The Courteous Neighbor: Can Kindness Cost You Land?

Let’s say you own a large yard, and you have a shed in the back. You have plenty of room in the shed, so like the friendly, courteous neighbor you are, you decide to allow your neighbor to store his lawnmower there.

Well, a decade goes by and your neighbor uses the shed for storage with no problems. However, one day your neighbor decides to get rid of the push mower and buys a big riding lawnmower. You don’t want your entire shed taken up by the thing, so you politely tell the neighbor he can’t use the shed anymore. But this makes the neighbor mad. He says he has a right to use the shed. He says he’s been using it for years, even built a path to it for easy access, and he has nowhere else to put the mower.

Is he right? Does the neighbor have a right to use the shed? I think most of us will intuitively say no. It is your property, after all.

However, why is that the case? What are the legal principles that determine you are not at risk of giving your property away by letting someone else use it?

That question becomes quite interesting. After all, there are ways a neighbor can gain legal rights to real property without buying it. Let’s first go over some of the ways someone could gain a property right in a neighboring property and then return to the question of why you are likely not at risk of giving away your exclusive property rights to a neighbor by letting him use your property.

How Neighbors Can Gain Rights to Your Property

To understand why you are usually safe, we first have to look at what legal doctrines your angry neighbor may try to argue. In Washington State, there are two main ways a neighbor can gain a permanent legal right to your land without paying for it: adverse possession and prescriptive easements.

Adverse possession gives them ownership of the land, while a prescriptive easement just gives them a right to use it. Though the end results differ, the requirements in Washington are similar for both. To win, the neighbor would have to prove their use of your shed was:

1. Open and Notorious: They weren’t hiding it, and their use should have been obvious to the property owner.
2. Continuous: They used it without a break for the statutory period. In Washington, this is a distinct 10-year period.
3. Exclusive: They used it independently and did not share it with the general public, like a true owner.
4. Hostile: This is the critical element.

“Hostile” in this context doesn’t mean the neighbor took over the shed like an invading army. It is a legal term meaning they treated the land as their own without the owner’s permission.

Why “Permission” Is So Important

Now, let’s go back to our shed scenario. Why is the courteous neighbor safe?

The answer lies in that final element: Hostility.

In Washington, if you give someone permission to use your property, their use is unlikely to be considered “hostile.” By saying, “Sure, you can go ahead and store your mower in my shed,” you granted them a revocable license. Because you gave permission, the requirements for a hostile claim are much harder to meet.

In fact, Washington courts have been very protective of the “good neighbor.” There is a legal concept here known as “neighborly accommodation.” In Gamboa v. Clark, the Washington Supreme Court essentially ruled that we shouldn’t punish friendly neighbors. The court established a presumption that when a neighbor uses another’s land in a way that suggests a friendly gesture, the law assumes it was permissive, not hostile.

This means the burden is on the neighbor to prove either you didn’t give them permission, or you actually intended to grant them a permanent right. That is a very hard burden to overcome for the neighbor.

But What About the Path?

The neighbor in our story may argue that because he built a path, he now has a right to stay.

While Washington does recognize something called “estoppel” (where a promise becomes binding because someone spent money relying on it), that doctrine is generally not available for someone with a revocable license to use someone else’s property. Courts in this state have been clear that the owner may revoke a license at any time, even if the other person spent money to improve the property.

The Takeaway

So, should you fear giving away your property rights by being a courteous and generous neighbor? Generally, no. Giving permission is actually safer than saying nothing at all.

If a neighbor starts using a corner of your yard and you stay silent for 10 years, that silence can be interpreted as acquiescence to a hostile claim. But if you say, “I see you are using that corner, and I give you permission to do so until I need it back,” you have essentially asserted your ownership and protected your rights.

However, to be sure you are protecting yourself, and don’t run into any “he said she said” about the she-shed, here are some tips:

1. Don’t Ignore Encroachments or Neighbors Using your Property: If a neighbor has been using a portion of your land for any reason, be sure to act before the 10-year mark.
2. Grant Permission Explicitly: If you allow a neighbor to use your property, make sure it is clear to everyone that permission has been granted, and the permission may be revoked.
3. Put it in Writing: To be extra safe, make a written agreement. Even a simple email or letter stating, “I am giving you a revocable license to use my shed, which I may terminate at any time,” is a good way to make it clear to everyone what is being granted. It could potentially prevent legal issues down the road.

So, don’t fear being a courteous neighbor. Washington courts have structured the rules to incentivize neighborly accommodations. Just be sure to understand the basic principles of real property ownership and to protect yourself where necessary.