[WSBARP] New fact pattern for me Adverse Possession.

[Stephen Brandli]

I believe the element you are looking for is the "hostile" element.  "Hostility, as defined by this court, does not import enmity or ill-will, but rather imports that the claimant is in possession as owner, in contradistinction to holding in recognition of or subordination to the true owner."  Chaplin v. Sanders, 100 Wn.2d 853 (1984).  If the "deal" that the son made was for the bad guy to possess the house temporarily (rental?), then the possession was permissive and subordinate to the son's ownership, at least at the time.  If this was in the nature of a sale, then a claim of adverse possession is not necessary for the bad guy to establish ownership (unless he doesn't have the deed).

The fraud allegation seems ill-defined.  If the deal was to sell the property, then the claim is fraud in the inducement.  The description of the problem does not explain the fraud.  However, it seems unlikely that the fraud was only recently discovered.  The limitations period ended long ago.

All of this just IMHO.

                Steve

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Christy M
Sent: Thursday, March 11, 2021 2:53 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] New fact pattern for me Adverse Possession.

If he's telling people it's not his, it doesn't seem open and notorious.


-------- Original message --------
From: Craig Gourley <craig at glgmail.com<mailto:craig at glgmail.com>>
Date: 3/11/21 2:45 PM (GMT-08:00)
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] New fact pattern for me Adverse Possession.


  1.  My guess is the bad guy was making the payments, got behind and then cured it. Bank obviously either doesn't know or doesn't care that borrower is deceased.


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 Roger Hawkes
Sent: Thursday, March 11, 2021 2:37 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] New fact pattern for me Adverse Possession.

Craig: if facts are what you state, I am pretty sure a sober judge would find some sort of equitable relief and not grant a decree of ap.  The two foreclosure actions give me some pause too; seems like somebody would have to do something so the result was not foreclosure.

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 Craig Gourley
Sent: Thursday, March 11, 2021 2:19 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] New fact pattern for me Adverse Possession.

Listmates.  After 37 years I thought I had seen just about every weird fact pattern that people can come up with.  Well, I was wrong.  Your thoughts on this would be appreciated.   Mom dies 17 years ago. No probate. Son is grief stricken when along comes the bad guy and tells grief stricken son that he will " take over"  the house and gives him a couple bucks for his trouble.  Son moves out, signs some document which we do not have a copy of.  Son later figures out he has been taken advantage of but figures nothing can be done.   Now, along comes the IRS investigating the bad guy and trying to see if he owns the property which bad guy I believe tells the IRS that he does not . IRS tells son that whatever he signed was not valid so Mom is still in title.  I check and yes deceased mom is still in title with an outstanding Deed of Trust that has been in foreclosure twice since she died. Not sure if bad guy lives there but suspect he is renting it out.  Soooo.  If we open probate to get son the  power over the real estate can we try to kick the bad guy out?  Is the fact he has had possession for more than 10 years create adverse possession even if he acquired that possession by fraud or some underhanded means?  If he made a statement to the IRS under penalty of perjury that he does not own it, is that a waiver or some such thing? My initial thought is adverse possession is a problem but I have never researched the fraud angle or a subsequent disclaimer.  Thoughts???

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