[WSBARP] unique situation- how to proceed when a person is missing but not presumed dead

Fri Jun 18 12:03:32 PDT 2021

A few thoughts that might or might not actually apply to the full facts here-

  1.  Client is a cotenant and so is free to live in the house or rent it to third parties and can pay all expenses, and has a right of reimbursement against the cotenant sibling that accumulates over time (offset against sibling's right to a share of rent revenue). So unless there are other factors involved that make it urgent to the client to sell immediately, I think it's to client's advantage to leave things as they lie. The name on the title doesn't cause a problem unless there is a need to sell or use the house as security for a loan.
  2.  On the cold-blooded possibility of gaining adverse possession ownership, I think it would be tough to do. Ouster of a cotenant is always difficult to prove and the sibling's mental illness disability is also likely to toll the statute of limitations.
  3.  Instead of adverse possession, then, client would file for a partition action, if there is a need to sell. You already mentioned that a GAL likely would need to be appointed, per RCW 4.08.060<https://app.leg.wa.gov/RCW/default.aspx?cite=4.08&full=true#4.08.060>. The difficult issue is what to do with the sibling's share of net proceeds, which would presumably be 50% minus any reimbursement to client for half of the property expenses shouldered by the client over the years. If that is a fair amount of money, then a conservatorship might be affordable, and maybe even some EP could be done to put the money in a special needs trust for the sibling.
  4.  Partition stinks as a remedy since it requires sale by public auction on the courthouse steps; but perhaps the GAL would agree to a cooperative listing and sale on the open market. Alternatively, instead of partition, if there is any way to scrape enough money together to start the conservatorship first, and then the client and the conservator jointly sell the property by listing it, that would be a lot better.

Sincerely,

Eric

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

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Christy M
Sent: Friday, June 18, 2021 11:17 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] unique situation- how to proceed when a person is missing but not presumed dead

On a related topic, how do I proceed for a client who co-owns a house with a sibling who is in a mental hospital for what looks to be an indefinite stay? Sibling has been there for a year and there is no indication that sibling will ever recover her faculties. When sibling lost her faculties, one of her symptoms was extreme hostility to client and they need to not co-own a house anymore. Obviously, sibling is not competent to participate in any litigation but there is no money for a guardian or guardian ad litem.

Thank you!

________________________________
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 Athena Dickerson <athena at detsparlaw.com<mailto:athena at detsparlaw.com>>
Sent: Tuesday, June 15, 2021 8:36 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] unique situation- how to proceed when a person is missing but not presumed dead

Thank you for clarifying,  I will look into that further.

Sent from my T-Mobile 4G LTE Device

-------- Original message --------
From: Eric Nelsen <eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>>
Date: 6/15/21 7:57 PM (GMT-08:00)
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] unique situation- how to proceed when a person is missing but not presumed dead

Getting a trustee appointed automatically gives you someone to sign contracts, leases, etc., on behalf of the absentee That is immediate, so you can proceed with the lease. The trustee just has to hold the absentee's assets and share of net revenue until they reappear or are declared dead.
Eric Nelsen
Sayre Law Offices, PLLC
206-625-0092

On Jun 15, 2021 4:09 PM, Athena Dickerson <athena at detsparlaw.com<mailto:athena at detsparlaw.com>> wrote:
That is a great idea, but sadly we are 5 years short of 7.   Thank you for your response

Sent from my T-Mobile 4G LTE Device

-------- Original message --------
From: Eric Nelsen <eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>>
Date: 6/15/21 6:51 PM (GMT-08:00)
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] unique situation- how to proceed when a person is missing but not presumed dead

See Ch. 11.80 RCW, estates of absentees. It appoints a person to act as trustee for the missing person's assets and also allows them to be declared dead if missing for seven years.
Eric Nelsen
Sayre Law Offices, PLLC
206-625-0092

On Jun 15, 2021 3:07 PM, Athena Dickerson <athena at detsparlaw.com<mailto:athena at detsparlaw.com>> wrote:

Hi all,

I have a client who co-owns a piece of property (personally and not in an entity) with 2 others.   1 of the 2 other people has been missing in Mexico for quite some time and a missing persons report was filed here in WA, but he has not been declared or presumed dead.   Essentially, he has vanished.   The lease for this property is up and my client (one of the land owners) is not able to execute a new lease (essentially a new lease for the long standing tenant) since he does not have the authority to sign for the missing landowner and since there is no entity, he can't get around it.    The tenant isn't willing to take a lease only signed by 2 of the 3 owners as they are a national tenant.   Anyone have any brilliant ideas how to proceed?   I wonder if special master can be appointed to sign for the missing person and if so, what kind of action do I file this under to open a case?  Anyone dealt with this before?

Athena Makratzakis Dickerson

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