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adverse possession; WA state

On Lawyer & Legal » Real Estate & Property Law

17,081 words with 9 Comments; publish: Mon, 05 May 2003 12:16:00 GMT; (8003,820.31, « »)

I own a rural, rocky, steep 25 acre lot, recently subdived from 160 acre farm; rising in elevation to an area of smaller parcels on a flat gorge rim, where a common line owner has been enjoying as his own that corner of the lower lot which is situated above the rim. Ive been researching the requirements for adverse possession in Washington state to understand my exposure to his potential claim, especially as his home and not just his use encroaches (http://www.leg.wa.gov/rcw/index.cfm?fuseaction=chapter&chapter=7.28 Chapter 7.28 RCW EJECTMENT, QUIETING TITLE).

He purchased in 1981 from his familys farm subdivision. The property line in question continues straight south as the line for other family lots. He claims an old fence line forms the basis for the verbal adjustment on his lot (he doesnt mention theirs). He built his house over the survey line of record about 4 in about 1988, and apparently has been cutting trees and vegetation much farther (say 150) over the line since then also.

After closing, I sent him a letter noting his encroachment on recorded surveys, and respectfully asking that he stop cutting timber on my land to open up his view shed. As he didnt respond, I sent him another copy, certified. He finally responded that the long dead past owner let him do this, beyond his claimed property line, and couldnt he continue in the spirit of good neighbors. He also claims that the encroachment is not one really, but results from a property line adjustment agreed to by the then-owner of my lot some two transfers back. This assertion is inconsistent with all recorded legals and surveys of which I or the title co., seller, real estate agents, or surveyors am aware.

In the state of Washington is there a requirement for a claimant of adverse possession to necessarily have paid taxes due on the contested property over the years?

Is it significant that the property has passed from the owner he agreed supposedly with, to his estate and to his son before being sold to me, i.e., that there were multiple legal transfers, duly described and recorded?

Does his agreement with the former owner preclude the hostility required for a claim, even though it would be adverse today?

To be exclusive must his possession be physically defined as such, e.g., by a fence?

As he has made no attempt to formally take adverse possession over the many years of using the land, has his right to pursue adverse possession expired?

Is his claim untenable if he has no connected title in law or equity deducible of record?

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  • 9 Comments
    • Quote:
      === Original Words ===

      Lucian

      I own a rural, rocky, steep 25 acre lot, recently subdived from 160 acre farm; rising in elevation to an area of smaller parcels on a flat gorge rim, where a common line owner has been enjoying as his own that corner of the lower lot which is situated above the rim. Ive been researching the requirements for adverse possession in Washington state to understand my exposure to his potential claim, especially as his home and not just his use encroaches (http://www.leg.wa.gov/rcw/index.cfm?fuseaction=chapter&chapter=7.28 Chapter 7.28 RCW EJECTMENT, QUIETING TITLE).

      He purchased in 1981 from his familys farm subdivision. The property line in question continues straight south as the line for other family lots. He claims an old fence line forms the basis for the verbal adjustment on his lot (he doesnt mention theirs). He built his house over the survey line of record about 4 in about 1988, and apparently has been cutting trees and vegetation much farther (say 150) over the line since then also.

      After closing, I sent him a letter noting his encroachment on recorded surveys, and respectfully asking that he stop cutting timber on my land to open up his view shed. As he didnt respond, I sent him another copy, certified. He finally responded that the long dead past owner let him do this, beyond his claimed property line, and couldnt he continue in the spirit of good neighbors. He also claims that the encroachment is not one really, but results from a property line adjustment agreed to by the then-owner of my lot some two transfers back. This assertion is inconsistent with all recorded legals and surveys of which I or the title co., seller, real estate agents, or surveyors am aware.

      In the state of Washington is there a requirement for a claimant of adverse possession to necessarily have paid taxes due on the contested property over the years?

      Is it significant that the property has passed from the owner he agreed supposedly with, to his estate and to his son before being sold to me, i.e., that there were multiple legal transfers, duly described and recorded?

      Does his agreement with the former owner preclude the hostility required for a claim, even though it would be adverse today?

      To be exclusive must his possession be physically defined as such, e.g., by a fence?

      As he has made no attempt to formally take adverse possession over the many years of using the land, has his right to pursue adverse possession expired?

      Is his claim untenable if he has no connected title in law or equity deducible of record?

      **A: very good questions and too complex for a response in a forum such as this one. An attorney needs to review your documents ie. title report, survey, letters to the neighbor etc. and have a meeting with you to determine the answers that you seek.
      #1; Mon, 05 May 2003 13:23:00 GMT
    • Quote:
      === Original Words ===

      Lucian

      Problems with the language of the letter and/or of the agreement proposed therein?

      I'll research the recordable encroachment agreement rather than do what I'm trying to avoid doing, as you so generally recommend - hire an attorney. If you don't have time to offer anything more specific, I understand that. Thanks for your advice.

      **A: the neighbor must also sign the encroachment agreement.
      #2; Wed, 07 May 2003 11:18:00 GMT
    • My hope is that there is a simple answer to a component question which will make the complexity (or simplicity) of the situation moot, e.g., is there a requirement for a claimant of adverse possession to necessarily have paid taxes due on the contested property over the years?
      #3; Mon, 05 May 2003 14:05:00 GMT
    • Quote:
      **A: there are numerous problems with the language in the letter. Hire a real estate attorney to draft a better one or better yet, a recordable encroachment agreement.
      Problems with the language of the letter and/or of the agreement proposed therein?

      I'll research the recordable encroachment agreement rather than do what I'm trying to avoid doing, as you so generally recommend - hire an attorney. If you don't have time to offer anything more specific, I understand that. Thanks for your advice.

      #4; Tue, 06 May 2003 12:19:00 GMT
    • Ok, thanks for sharing.
      #5; Fri, 09 May 2003 11:52:00 GMT
    • Quote:
      === Original Words ===

      Lucian

      Thanks much, HomeGuru.

      I had done a search for "tax" in 7.28 and couldn't really hang my hat on my interpretation.

      On the face of it, he doesn't appear to have a case for adverse possession. In such circumstances are unsustainable (unsubstantiated) verbal agreements ever deemed to be sufficient to abrogate recorded title? I can hear the answer that, no, the conditions for adverse possession must be met whether or not the cause for the taking is a verbal agreement or a bad dream.

      I have drafted a letter to him advising him that we have a disagreement but that we may be able to live in peace if we can come to an agreement whereby I give him permission to enjoy my land as his, albeit in reduced scope, and referencing lot numbers the descriptions of which are legally recorded.

      The letter:

      "You are correct that there is some question as to our mutual legal property line. Had the former owner intended to permanently change the property line, he would have to have done so in a way which ensured the preservation of the change in subsequent transfers. He did not and the property passed to his estate and then to his son and then to me. Whatever verbal agreements you and he had regarding his property were of a personal nature, and did not run with the property. The fact that your buildings encroachment is noted on recorded surveys over the years reflects that no changes were made in the property line, and this is as recorded variously throughout the histories of both your parcel and the my parcel. The former owner sold and I bought and the title company insured his property based on such a survey and descriptions as these, together with as well all valid recorded easements.

      Notwithstanding the above, I do not wish to become legally entangled with the seller or you or anyone else over this or any other matter. I am hopeful there may be a way for us to come to an agreement whereby you can enjoy the use of that flat portion of my lot which is up on the rim.

      I attach below a simple draft of such an agreement which will give you limited legal use of the ground. It is revocable but costs you nothing. If revoked, there would be nothing lost. To be clear, while I am willing to let you keep trees from growing up in the flat-area lawn, I again request that you not cut any trees down or that you do any downslope vegetation removal at all, without my specific written approval (which is likely to be limited to invasives, e.g., Himalayan blackberry, bindweed, English ivy).

      Without an agreement, the only prudent thing for me to do would be to try to protect my interests with whatever legal means available and with no apparently satisfactory result possible for anybody, and to seek compensation for damages and costs incurred in the process. Should you prevail in court, I dont see the results being very good for anyone: at considerable legal cost, you would gain ten plus feet together with a big tax bill for same, and signed fences to protect my property rights and major tree plantings to restore the woods would be installed close by the east side of your house.

      Thank you for your consideration.

      ----------

      Agreement Granting Permission to Use Property - DRAFT

      I, my name, owner of the property located at my address, WA; Tax Lot 0-0-0-00, give my permission to his name, owner of the property located at address, WA; Tax Lot 0-0-000, to use as yard space the level strip of my property bordering the west side of the property line as described by surveys and legal descriptions of record. I reserve the right to revoke this permission at any time.

      ___________________________ __________

      my namedate

      I, his name, acknowledge that my use of this strip of land belonging my name is by permission only, and that the permission may be revoked at any time.

      ___________________________ __________

      his namedate

      Besides (hopefully) forming a basis for operation, the agreement constitutes a granting and accepting of permission based on reecorded titles which imply him to be otherwise tresspassing: he gets to use the space, I get improved protection from an action to take possession adversely.

      Please comment.

      **A: there are numerous problems with the language in the letter. Hire a real estate attorney to draft a better one or better yet, a recordable encroachment agreement.
      #6; Tue, 06 May 2003 11:02:00 GMT
    • Thanks much, HomeGuru.

      Quote:
      **A: yes, taxes and assessments must have been paid by the claimant during the 7 year period preceeding the claim per WA Code 7.28.050-090.
      I had done a search for "tax" in 7.28 and couldn't really hang my hat on my interpretation.

      On the face of it, he doesn't appear to have a case for adverse possession. In such circumstances are unsustainable (unsubstantiated) verbal agreements ever deemed to be sufficient to abrogate recorded title? I can hear the answer that, no, the conditions for adverse possession must be met whether or not the cause for the taking is a verbal agreement or a bad dream.

      I have drafted a letter to him advising him that we have a disagreement but that we may be able to live in peace if we can come to an agreement whereby I give him permission to enjoy my land as his, albeit in reduced scope, and referencing lot numbers the descriptions of which are legally recorded.

      The letter:

      "You are correct that there is some question as to our mutual legal property line. Had the former owner intended to permanently change the property line, he would have to have done so in a way which ensured the preservation of the change in subsequent transfers. He did not and the property passed to his estate and then to his son and then to me. Whatever verbal agreements you and he had regarding his property were of a personal nature, and did not run with the property. The fact that your buildings encroachment is noted on recorded surveys over the years reflects that no changes were made in the property line, and this is as recorded variously throughout the histories of both your parcel and the my parcel. The former owner sold and I bought and the title company insured his property based on such a survey and descriptions as these, together with as well all valid recorded easements.

      Notwithstanding the above, I do not wish to become legally entangled with the seller or you or anyone else over this or any other matter. I am hopeful there may be a way for us to come to an agreement whereby you can enjoy the use of that flat portion of my lot which is up on the rim.

      I attach below a simple draft of such an agreement which will give you limited legal use of the ground. It is revocable but costs you nothing. If revoked, there would be nothing lost. To be clear, while I am willing to let you keep trees from growing up in the flat-area lawn, I again request that you not cut any trees down or that you do any downslope vegetation removal at all, without my specific written approval (which is likely to be limited to invasives, e.g., Himalayan blackberry, bindweed, English ivy).

      Without an agreement, the only prudent thing for me to do would be to try to protect my interests with whatever legal means available and with no apparently satisfactory result possible for anybody, and to seek compensation for damages and costs incurred in the process. Should you prevail in court, I dont see the results being very good for anyone: at considerable legal cost, you would gain ten plus feet together with a big tax bill for same, and signed fences to protect my property rights and major tree plantings to restore the woods would be installed close by the east side of your house.

      Thank you for your consideration.

      ----------

      Agreement Granting Permission to Use Property - DRAFT

      I, my name, owner of the property located at my address, WA; Tax Lot 0-0-0-00, give my permission to his name, owner of the property located at address, WA; Tax Lot 0-0-000, to use as yard space the level strip of my property bordering the west side of the property line as described by surveys and legal descriptions of record. I reserve the right to revoke this permission at any time.

      ___________________________ __________

      my namedate

      I, his name, acknowledge that my use of this strip of land belonging my name is by permission only, and that the permission may be revoked at any time.

      ___________________________ __________

      his namedate

      Besides (hopefully) forming a basis for operation, the agreement constitutes a granting and accepting of permission based on reecorded titles which imply him to be otherwise tresspassing: he gets to use the space, I get improved protection from an action to take possession adversely.

      Please comment.

      #7; Mon, 05 May 2003 17:17:00 GMT
    • Quote:
      === Original Words ===

      Lucian

      My hope is that there is a simple answer to a component question which will make the complexity (or simplicity) of the situation moot, e.g., is there a requirement for a claimant of adverse possession to necessarily have paid taxes due on the contested property over the years?

      **A: yes, taxes and assessments must have been paid by the claimant during the 7 year period preceeding the claim per WA Code 7.28.050-090.
      #8; Mon, 05 May 2003 14:11:00 GMT
    • A WA atty has advised me that there are two ways that one can claim adverse ownership of land: 1. meet all of the requirements of adverse possession for ten consecutive years. 2. claim under the "color of title" concept where the claimant has paid taxes on the disputed property for seven years and there is color of title in the tax rolls. The first approach requires all of the usual elements (open, notorious, hostile, exclusive, etc.), but does not require any payment of taxes.
      #9; Thu, 08 May 2003 12:37:00 GMT