[WSBARP] Co-tenancy Road and Encroachment

Mon Aug 25 12:27:57 PDT 2014

Paul--I don't think I've seen any responses so I'll take a stab.

1. Any grantee whose deed didn't say "...and an undivided XX% interest in
[Tract B]" did not receive any ownership interest in Tract B, and grantor
retained the fee in Tract B. The grant of fee title in a deed is always
confined to the actual described land; no fee title outside its boundaries
can transfer by implication.

But the grantee could argue that they received an easement by implication,
if access via Tract B is necessary to reasonably enjoy ownership and use
of the transferred lot. Separate analysis under the rules for easement by
implication. Also maybe a potential action for easement by necessity?
Sounds like perhaps the CC&Rs or the plat also possibly includes some
rights over Tract B? It's hard to tell from the facts described.

I'm also interested in the "transfer document" from HOA to the 4 owners
"for use as ingress and egress."  That sounds like an easement but
transfer of ownership ought to be by a deed, unless there's something else
going on here. Based on these limited facts, I wonder if ownership of
Tract B is even more muddled than it appears.

2. Answer depends in part to nature of ownership and use rights on Tract
B, so a litigation guarantee on Tract B might be a good idea. But
regardless of whether these are tenant-in-common estates or easement
rights, I really doubt that "ouster" can be easily proved; it takes very
strong facts and with so many defendants who would have to be ousted (all
of the other users and owners of Tract B), that's a serious mountain of
evidence that would be needed.

My first thought here would be, get a litigation guarantee and resolve
exactly who has what kinds of interests in Tract B. Then I think, if all
neighborly cooperative attempts fail, a Declaratory Judgment and request
for injunctive relief is the most likely vehicle.

But consider the effect of a partition action on Tract B, once you know
who has rights to it and how. It might not be what your client wants, but
it's an interesting set of possible relief in this kind of situation.

3. Agreed.

Sincerely,

Eric

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1320 University St

Seattle WA  98101-2837

phone 206-625-0092

fax 206-625-9040

From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of Paul Neumiller
Sent: Wednesday, August 20, 2014 5:20 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] Co-tenancy Road and Encroachment

Listmates, your thoughts and views please:

Lots and road (sixty foot wide dirt/gravel road named Tract B) were
created by a recorded survey in 1976.  In 1984, the developer (who did not
sell all of the lots) filed CC&Rs that presumably controlled Tract B and
formed an HOA.  In 1986, the Assn, realizing that Tract B only befitted 4
lot owners,  transferred Tract B to the 4 lot owners for use as ingress
and egress.  The transfer document to the 4 owners doesn’t give the names
of the four lot owners but rather just says “to the owners of Lots…”.  I
represent the owner at the end of Tract B who owns a ¼ undivided
co-tenant’s interest in Tract B.

1.       Three of the lot owners have short platted their lots so there
are now 13 owners.  We have learned that for many of the transfers of the
13 lots, there was no mention of the undivided interest in Tract B.  So,
is it possible that some of the lot owners do not own an undivided
interest in Tract B because the interest was not transferred to them?  Do
I care?  A local senior title officer tells me that, by virtue of Tract B
showing up on a recorded survey, the owners of the 13 lots now have a
private easement across Tract B.

2.       Ok, Tract B is 60 feet wide but the physical road is only about
15 feet wide, clearly not enough for two cars to pass.  Trouble for a fire
truck to turn around.  My client’s RV scrapes the bushes on both sides.
Neighbors along the driveway have planted fruit trees, hedges, and lawns
that encroached into the driveway.  My client, who has all of the proper
equipment, wants to widen the road to at least thirty feet wide so the
road will be 20 feet wide with 5 foot shoulders.  To do so, he will need
to tear out the neighbors’ hedges, lawns, etc.  The closest neighbor is a
screaming, swearing, chest-poking, anger-management issues huge guy.
There have been threats from the neighbor and my client is starting to
create a paper trail at the local Sheriff’s office.  One of the problems
is that kids play on the road and come darting out of the hedges into
passing cars.  My client has tried the friendly letter approach and the
plate of cookies approach.  I have suggested a neighborhood-wide meeting
with pie and coffee to explain the nature of the ownership and use of
Tract B to the neighbors.  If that fails, then what action do I need to
take?  Seek a declaratory judgment granting my client the power, as a
co-tenant, to improve the road so it will adequately serve the purpose for
which it was created?  Can the spitting swearing neighbor successfully
argue “partial” ouster for the area of Tract B that he has moved into.
The neighbor initially verbally agreed to a 20 foot wide road (with other
neighbors as witnesses) but now he is fighting any scraping of the road
any wider than 18 feet.  It is anticipated that the road simply will get
narrower and narrower as everyone’s lawn continues to creep into the road.

3.       Just to clarify, I understand and sympathize with the neighbor.
He purchased his lot with the lawn and hedges already in place and did not
know that the lawn and hedges were encroaching onto Tract B.  He sees my
client as a big trouble maker who owns the big house and big lot at the
end of the road.  However, his ignorance does not mean that he now has the
right to exclude a co-tenant from a portion of Tract B.  

Thoughts?

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