[WSBARP] House encroachment

[Gregory L. Ursich]

Scott: Our office represents 10 different cities, and many more special purpose districts, and all my municipal partners agree with me that the statute covers all disputed boundary lines, including ones changed by adverse possession, mutual recognition and acquiescence, and other related parties in possession theories.  Of course, you have to be careful about turning a conforming lot into a non-conforming lot and pay attention to historical setbacks as well as the setback codes, but otherwise the boundary line agreement under RCW 58.04.007, is a very good vehicle to quickly and inexpensively resolve most minor boundary disputes that involve parties in possession theories.  The title insurers also insure them as well.   I have done these agreements now for 20 years and have yet to have one come back and bite a client or successor. -Greg

[cid:image003.jpg at 01D5B1B2.4A8B8410]
Gregory L. Ursich
Shareholder
Skyline Tower, Suite 1500 | 10900 NE 4th Street | Bellevue, WA 98004
P: 425.450.4258 | F: 425.635.7720
vCard<http://www.insleebest.com/uploads/vcards/gursich.vcf> | website<http://www.insleebest.com/> | gursich at insleebest.com<mailto:gursich at insleebest.com>

This electronic mail transmission is privileged and confidential and is intended only for the review of the party to whom it is addressed.  If you have received this transmission in error, please immediately return it to the sender.  Unintended transmission shall not constitute waiver of the attorney-client or any other privilege.

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of scott at scottgthomaslaw.com
Sent: Friday, December 13, 2019 7:55 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] House encroachment

Be careful that you do not read more into this statute than is allowed.  RCW 58.04.007 was enacted to allow fixing boundary lines and lot corners when they had been lost, or there was a dispute as to their location.  Using the statute to fix other types of boundary issues is problematic.  And because property owners use the statute to alter a boundary does not mean that a city or county will recognize that alteration as being valid at a future date.  To illustrate, several years ago one of my municipal clients was approached by a property owner who, without lawyers, had relied on this statute to alter a boundary and transfer an acre or so of land.  The other property owner had sold his land after the transfer.  This ultimately created a number of compliance issues with the city’s land use code,  and the city refused to recognize the transfer.  This is an extreme example, and I am fairly certain this would not have happened if counsel had been involved at the outset, but I caution that it is unwise to assume that this statute is the key to moving a boundary.

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Gregory L. Ursich
Sent: Thursday, December 12, 2019 7:56 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] House encroachment

You do not need to ask and you should not ask; a boundary line agreement is state law and no municipal approval is required and is in fact not allowed. RCW 58.04.007
Sent from my iPhone

On Dec 12, 2019, at 6:09 PM, Mike Jacobs <mikej at riachgese.com<mailto:mikej at riachgese.com>> wrote:

Do you mean Seattle and King County will reject a Boundary Line Agreement?

Sincerely,

Michael P. Jacobs
Riach Gese Jacobs, PLLC
7331 196th St. SW | PO Box 1067 | Lynnwood, WA 98036
Phone: (425) 776-3191 | Fax: (425) 425-775-0406

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Gregory L. Ursich
Sent: Thursday, December 12, 2019 4:03 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] House encroachment

In Seattle or King county, if you ask for a “blessing” they will require you (wrongly)  to do a boundary line adjustment at great cost and delay; which is not the law.

<image001.jpg>
Gregory L. Ursich
Shareholder
Skyline Tower, Suite 1500 | 10900 NE 4th Street | Bellevue, WA 98004
P: 425.450.4258 | F: 425.635.7720
vCard<http://www.insleebest.com/uploads/vcards/gursich.vcf> | website<http://www.insleebest.com/> | gursich at insleebest.com<mailto:gursich at insleebest.com>

This electronic mail transmission is privileged and confidential and is intended only for the review of the party to whom it is addressed.  If you have received this transmission in error, please immediately return it to the sender.  Unintended transmission shall not constitute waiver of the attorney-client or any other privilege.

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Rob Wilson-Hoss
Sent: Thursday, December 12, 2019 3:41 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] House encroachment

Yes and no. Here, the Assessor and Auditor will ask the planner if it meets the requirements of the statute. If you want to fight that system, ok, but it is easier to run it by them first.

Robert D. Wilson-Hoss
Hoss & Wilson-Hoss, LLP
236 West Birch Street
Shelton, WA 98584
360 426-2999
www.hossandwilson-hoss.com<http://www.hossandwilson-hoss.com>
rob at hctc.com<mailto:rob at hctc.com>

This message is intended solely for the use of the addressee and may contain information that is privileged, confidential, and exempt from disclosure under applicable law.  If you are not the addressee, you are hereby notified that any use, distribution, or copying of this message is strictly prohibited.  If you received this message in error, please notify us by reply e-mail or by telephone (call us collect at the number listed above) and immediately delete this message and any and all of its attachments.  Thank you.

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Gregory L. Ursich
Sent: Thursday, December 12, 2019 2:17 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] House encroachment

Rob: I respectfully disagree on one of your points; no municipal approval or review is needed for a proper boundary line agreement under RCW 58.04.007.  It is state law.  My law firm has a very large municipal  practice and we represent about 10 cities and many special purpose districts and all of my municipal partners agree with me that no municipal approval or review is needed.  But, I do agree you need to get a partial release from the lender for the neighbor property.  Especially if you are selling the property right away. Sometimes, if a lender is difficult to get in touch with, then a “friendly quiet title action” may be better, where the lender is named and has to get counsel (likely title insurance appointed).  -Greg

<image001.jpg>
Gregory L. Ursich
Shareholder
Skyline Tower, Suite 1500 | 10900 NE 4th Street | Bellevue, WA 98004
P: 425.450.4258 | F: 425.635.7720
vCard<http://www.insleebest.com/uploads/vcards/gursich.vcf> | website<http://www.insleebest.com/> | gursich at insleebest.com<mailto:gursich at insleebest.com>

This electronic mail transmission is privileged and confidential and is intended only for the review of the party to whom it is addressed.  If you have received this transmission in error, please immediately return it to the sender.  Unintended transmission shall not constitute waiver of the attorney-client or any other privilege.

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Rob Wilson-Hoss
Sent: Thursday, December 12, 2019 1:42 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] House encroachment

I agree that statutory boundary line agreements can be very useful, and I very much prefer them over the code approval Boundary Line Adjustment process, usually. You have to have a survey, and you should know what your planner will think about these before you start, and if there are any local governmental hoops to jump through; but agreements can be cheaper, far, far quicker, and more malleable. For example, you can throw in all sorts of stuff like reservations, restrictions, and so on.  But whenever you come anywhere near either a statutory boundary line agreement or a code Boundary Line Agreement, or a quiet title lawsuit or any other way to move boundaries, one of the first things to do is to get title reports, either just tract book reports or actual guarantees, on both lots. You will likely find financing, and perhaps other encumbrances, on the neighbor’s lot.

Know that almost always, Big Bank (or Little Credit Union, or grandmother) lent money with security being the original legal description of the neighbor’s parcel, before your agreement/adjustment  That loan trust deed is prior in time, no doubt, to whatever you do and however you do it. So, if the neighbor agrees, but later defaults on the loan and Big Bank forecloses, the foreclosure will be as to the original description; all you have done is kick the can down the road, and you will have to deal with it at that later time. Sure, you will still have your adverse possession facts, but you will be dealing with a new owner with legal title relating back to the deed of trust legal description, and therefore starting at zero in terms of finding a resolution path.

Those with experience in these matters will know that it should be possible to get Big Bank to do a partial release, for the part of that parcel that will be changing ownership, so long as they are sufficiently collateralized. But the larger the bank the less chance you will ever get this done.

You have to judge your circumstances. Sometimes the only way you can give your clients absolute security is to file a quiet title action; if the neighbor agrees, then it can be a friendly action. You then name and serve all encumbrancers who have interests on the neighbor’s lot. Big Bank will default almost always, so you get a judgment quieting title against not only the neighbor, but also all defendant encumbrancers, including Big Bank, as to the transferred part of the neighbor’s lot. Again in theory, though, the neighbor may have to answer to his lender based on the terms of the deed of trust, which don’t usually allow losing part of the securing property to an adverse possession claim. But again, Big Bank will very much not likely either notice or want to deal with any of that, again, so long as there are no real issues with the value of the remainder of the lot versus the amount of the loan. As long as the loan is adequately collateralized then Big Bank should not care.

On the other hand, I am not really very good at predicting what Big Bank will care about, or what it will do. Once I actually did get a partial release from a very big bank.

Rob

Robert D. Wilson-Hoss
Hoss & Wilson-Hoss, LLP
236 West Birch Street
Shelton, WA 98584
360 426-2999
www.hossandwilson-hoss.com<http://www.hossandwilson-hoss.com>
rob at hctc.com<mailto:rob at hctc.com>

This message is intended solely for the use of the addressee and may contain information that is privileged, confidential, and exempt from disclosure under applicable law.  If you are not the addressee, you are hereby notified that any use, distribution, or copying of this message is strictly prohibited.  If you received this message in error, please notify us by reply e-mail or by telephone (call us collect at the number listed above) and immediately delete this message and any and all of its attachments.  Thank you.

THIS OFFICE DOES DEBT COLLECTION AND THIS E-MAIL MAY BE AN ATTEMPT TO COLLECT A DEBT, ANY INFORMATION OBTAINED WILL BE USED FOR THAT PURPOSE.  To the extent the Federal Fair Debt Collection Practices Act (15 U.S.C. § 1692) applies this firm is acting as a debt collector for the condominium/homeowners' association named above to collect a debt owed to it. Any information obtained will be used for collection purposes. You have the right to seek advice of legal counsel.

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Gregory L. Ursich
Sent: Thursday, December 12, 2019 1:09 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] House encroachment

A boundary line agreement is the best way  to resolve this under RCW 58.04.007, which also requires a new survey and legal descriptions showing the new, agreed boundary line.   Hopefully, you can get neighbor to cooperate.  Do not do an easement as this is a permanent occupation and 15 years means the adverse possession requirements will have been met.  Also, to have an insurable sale and to obtain title insurance for the new buyer will require (as required by the title underwriters) a new boundary line placing the house entirely on the client’s property.  I do a lot of these and would be happy to help.

<image001.jpg>
Gregory L. Ursich
Shareholder
Skyline Tower, Suite 1500 | 10900 NE 4th Street | Bellevue, WA 98004
P: 425.450.4258 | F: 425.635.7720
vCard<http://www.insleebest.com/uploads/vcards/gursich.vcf> | website<http://www.insleebest.com/> | gursich at insleebest.com<mailto:gursich at insleebest.com>

This electronic mail transmission is privileged and confidential and is intended only for the review of the party to whom it is addressed.  If you have received this transmission in error, please immediately return it to the sender.  Unintended transmission shall not constitute waiver of the attorney-client or any other privilege.

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of nestor at pplsweb.com<mailto:nestor at pplsweb.com>
Sent: Thursday, December 12, 2019 12:42 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] House encroachment

PC bought a property for cash last year and is now selling. They discovered that the Prefab home encroaches 15 feet on the neighbor’s property. The encroachment was noted on the title policy indicating that has been there over 15 years.

PC wants to approach neighbor in a friendly manner to resolve the issue. Obviously wants to avoid time and expense of a quiet title suit. PC wanted to know if the owner balks, can he simply get an easement that will terminate when the house is demolished?

A deed of course is best, but they are trying to avoid the expense and time to enforce in court. Any suggestions or thoughts?


Nestor Gorfinkel, Attorney at Law
Licensed in Washington & Florida
Florida Civil-Law (International) Notary

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