[WSBARP] Adverse Possession

[Eric Nelsen]

I'm late to the party but for what it's worth I suppose there might be a question still, that depends on which parcel the common owner conveyed away first.

After reading through the discussion, it occurs to me that the common owner, at the time of common ownership, owned three things: Parcel A, Parcel B, and a cause of action to quiet title on behalf of Parcel A, to take an encroached area away form Parcel B.

If Owner conveyed Parcel B first, I think Parcel A's cause of action was extinguished: Owner conveyed all rights relating to Parcel B to the new owner, absent an express reservation. So Owner's later transfer of Parcel A would not include any rights against Parcel B. I would argue this is true under basic law governing deeds: The grantor is deemed to transfer fee simple in the property described in the deed. The Owner can't possibly have silently "reserved" a right to assert adverse possession over part of Parcel B.

But if Owner conveyed Parcel A first, I think Parcel A might still be able to tack onto prior owners' adverse possession of part of Parcel B. And, since Owner then conveyed Parcel B, the new owner of Parcel B might have a breach of warranty claim against Owner. Then question becomes, between Parcel A and Parcel B, who gets the land, and does the loser have an action against Owner for damages.

While the doctrine of merger is certainly relevant to the question of whether a conveyance of Parcel A included the cause of action for adverse possession against Parcel B, I think the issue is also colored by the cases governing tacking. See Howard v. Kunto, 3 Wn.App. 393, 477 P.2d 210 (1970). Howard was overruled by Chaplin v. Sanders on the issue of intent in adverse possession, but should still be good law on the issue of tacking and cites a number of other cases that might be enlightening. See also Shelton v. Strickland, 106 Wn.App. 45, 21 P.3d 1179 (2001).

On still another hand: What about common grantor? See Pendergrast v. Matichuk, 189 Wn.App. 854, 355 P.3d 1210 (2015), affirmed, 186 Wn.2d 556, 379 P.3d 96 (2016). Now that there was a common grantor, there may be a whole different ground other than adverse possession on which to assert a boundary line different from that described in the deeds.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Randy Boyer
Sent: Friday, February 7, 2020 3:04 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] Adverse Possession

Listmates

I am dealing with two adjacent parcels.  For many years they were owned by different people.  Until recently there was no knowledge of an encroachment of a yard area.  When one of the parcel owners died, the other owner purchased that property (that encroached).  The two parcels were owned by the same owner for 4 years.  Then that owner sold each of the parcels in the same year to different parties.

One of the new owners claims adverse possession for the yard area encroachment.  It seems to me that when both lots were owned by one owner the adverse possession claim could no longer be asserted.  New owner has only owned for 5 years.  Both parcels were sold with Warranty Deeds.

Has anyone run across this?  I have not found any cases yet.

Randy
Randy M. Boyer                                                 ______
Attorney, WSBA# 8665
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