[WSBARP] prescriptive easement and award of attorney fees

[Mark Phelps]

Erbeck v. Springer (Wash. App., 2015)(unpublished) stated:
57
ATTORNEY FEES
        The Erbecks request attorney fees on appeal under RCW 7.28.083(3). We conclude they are entitled to such an award, subject to compliance with RAP 18.1.
        "The general rule in Washington is that attorney fees will not be awarded for costs of litigation unless authorized by contract, statute, or recognized ground of equity."57 RCW 7.28.083(3) provides:
The prevailing party in an action asserting title to real property by adverse possession may request the court to award costs and reasonable attorneys' fees. The court may award all or a portion of costs and reasonable attorneys' fees to the prevailing party if, after considering all the facts, the court determines such an award is equitable and just.
        The Erbecks are the prevailing parties with respect to the contest over prescriptive rights to the roadway crossing their property. Springer does not contend otherwise.
        RCW 7.28.083(3) uses the term "adverse possession." The present case involves prescriptive easements. But these doctrines "are often treated as equivalent[s]," and the elements required to establish adverse possession and prescriptive easements are the same.58 Thus, we conclude that this statute applies in this case and exercise our discretion to award the Erbecks reasonable
Page 20
attorney fees. We award attorney fees only for issues concerning prescriptive easement rights.



Mark J. Phelps
Attorney, Litigation Practice Group Leader
Desh International & Business Law · www.deshlaw.com<http://www.deshlaw.com/>
11400 SE 8th Street, Suite 260, Bellevue, WA 98004
Direct: (425) 242-3398 · Fax: (425) 968-7571
Email: mphelps at deshlaw.com<mailto:mphelps at deshlaw.com>
[Email Signature Image]<http://www.deshlaw.com/>
This message may contain information which is confidential and/or protected by attorney-client privilege. If you are not the intended recipient, disclosure, copying, distribution, or use of the contents of this message is prohibited.  Any advice in this communication, including attachments, must not be used for the purpose of avoiding penalties under the Internal Revenue Code or for promoting, marketing or recommending to another party any tax-related matter(s) addressed. This message does not create an attorney-client relationship.

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Carl L. Gay
Sent: Wednesday, September 27, 2017 7:55 PM
To: listserve real property <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] prescriptive easement and award of attorney fees

Dear Colleagues,

Has anyone successfully extended the new (2012?) adverse possession statute (which awards fees and costs to prevailing party) to a prescriptive easement case?
Thanks for your thoughts.

CARL LLOYD GAY

what counts in life is what we do for others

GREENAWAY, GAY & TULLOCH
Attorneys and Counselors at Law
829 East Eighth Street       Suite A
Port Angeles, Washington   98362
Email                      clgay at tfon.com<mailto:clgay at tfon.com>
Telephone               (360) 452-3323
Facsimile                  (360) 452-3724

THIS EMAIL TRANSMISSION IS INTENDED FOR THE EXCLUSIVE USE OF THE INDIVIDUAL OR ENTITY TO WHOM IT IS ADDRESSED, AND MAY CONTAIN PRIVILEGED AND CONFIDENTIAL INFORMATION THAT IS COVERED BY THE ELECTRONIC COMMUNICATIONS PRIVACY ACT (18 USC §§ 2510-2521). IF YOU ARE NOT THE INTENDED RECIPIENT OR AGENT RESPONSIBLE TO DELIVER THE MESSAGE TO THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION, OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR; PLEASE NOTIFY US IMMEDIATELY BY TELEPHONE AND/OR EMAIL AND DELETE THE ORIGINAL MESSAGE. THANK YOU

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20170928/1cbf66ac/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 55323 bytes
Desc: image001.png
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20170928/1cbf66ac/image001.png>