[WSBARP] Release of bank lien on adverse possession.

Fri Sep 11 16:47:14 PDT 2020

My experience has been that often the 'front line' workers don't really understand legal issues; before going much further I recommend talking with someone higher up the chain of command within the title insurer.

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Craig Gourley
Sent: Friday, September 11, 2020 1:52 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Release of bank lien on adverse possession.

It is the title company creating the problem.  I am suggesting a new title company.  To me the language of the order is pretty clear that the lien is stripped.
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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 Kary Krismer <Krismer at comcast.net<mailto:Krismer at comcast.net>>
Sent: Friday, September 11, 2020 12:48:34 PM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com> <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] Release of bank lien on adverse possession.

Would a title company remove the exception for the DOT on those facts?  Seemingly they could rely on the court order rather than needing a release.

Kary L. Krismer

206 723-2148
On 9/11/2020 1:04 PM, Craig Gourley wrote:
Thank you all. In thus case the AP claim in about 30 years old so predates the DOT. We did serve the bank and they are subject to the award of AP. Problem is that the bank sold the loan after the AP award so we have a new "lender" who was not a party. Normally banks do a partial recon and we have no issues. Here the new lender is not a party and won't respond to our communications .
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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 <gursich at insleebest.com><mailto:gursich at insleebest.com>
Sent: Friday, September 11, 2020 9:59:36 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com><mailto:wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Release of bank lien on adverse possession.

All Lender's title policies have extended coverage and therefore insurance for AP claims. By suing the lender in the quiet title, they will instantly tender to the title insurer and will get appointed a very reasonable attorney, such as myself, to have the lender stipulate to adverse possession. -Greg

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Kary Krismer
Sent: Friday, September 11, 2020 6:04 AM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Release of bank lien on adverse possession.

I'm not sure Doug's issues matter based on zero research and what my wife claims is a questionable faulty memory.

I believe a grantee under a statutory warranty deed would take subject to the AP claim even if the full 10 years had not passed at the time of transfer.  The AP claimant would merely have to wait for the remaining time to pass.  I don't see any reason a grantee of a DEED of trust would be any different.  If the claim of ownership disappears through AP I think it disappears as to anyone with a claim against the property, or at least anyone claiming through the owner against which the period of AP started.

Alternatively, if the 10 years had passed at the time of the recording of the DOT then the DOT may have never attached to the portion.  As I recall it's the date of the expiration of 10 years that matters, not the date of the court ruling that the 10 years passed.

As to Greg's point about title insurance, if the bank has coverage the bank would have little motivation to act and so probably won't act.  But does a lender's policy cover AP, or does it matter when the AP claim 10 year period expired?  I'm pretty sure owner's policies wouldn't cover an owner when the entire period of AP occurred after they took title.

Kary L. Krismer

206 723-2148

On 9/10/2020 8:02 PM, Doug Owens wrote:

Dear Craig, this is an interesting question.  I have not done any research on the point but it seems to me that the principle behind adverse possession is that the open, notorious and hostile possession for the statutory term should be something that would motivate the person entitled to protect the property interest to take action to eject the trespasser.  Under this principle I ask myself what could the lien holder have done to eliminate the trespass?  And is the lien holder charged with knowledge of the adverse possession such that the lien holder could declare a breach of the deed of trust for the borrower's failure to protect the title?  On what basis would such knowledge be imputed?  An alternative analysis is that the adverse possessor takes title "subject to" the lien.  At a minimum if the adverse possessor did not serve the lender with the summons and complaint it would seem anomalous that the lien could be invalidated by the award of title through adverse possession.  Good luck.  Yours truly, Doug Owens

On Sep 10, 2020, at 6:47 PM, Craig Gourley <craig at glgmail.com<mailto:craig at glgmail.com>> wrote:

Listmates,  When a party is awarded title to property by adverse possession is the lender lien automatically stripped?  We have an uncooperative lender that refuses to recon the adversely possessed parcel and we really don't want to file a quiet title over a planter box.  However, this small cloud on title is preventing our clkient's sale of the property.  Thoughts?

Gourley Law Group

Snohomish Escrow

The Exchange Connection

1002 10th Street / PO Box 1091

Snohomish, WA 98291

360.568.5065

360.568.8092  fax

Craig at glgmail.com<mailto:Craig at glgmail.com>

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