[WSBARP] New fact pattern for me Adverse Possession.

[Catherine Clark]

This seems to me to be a permission case.  If a document was signed “giving” the property to bad guy, then isn’t that permission irrespective of the fraud?  And unclean hands would prevent AP seems to me.  Who is the lender?  I’d want that loan file, and the title and escrow file as well to see how it was insured and how title was determined.

Catherine “Cat” Clark
Law Office of Catherine C. Clark PLLC
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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Gregory L. Ursich
Sent: Thursday, March 11, 2021 9:46 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] New fact pattern for me Adverse Possession.

Seems like “bad guy” is a “lender” when he had son sign a Deed of Trust. So struggling with how can lender adversely possess when is trying to foreclose?
Strategy I would pursue: Open probate of Mother’s Estate and get son appointed PR.  Bring a separate quiet title action on behalf of the Estate against “Bad guy” (BTW it is not a TEDRA action because it involves a third party attempting to claim the real estate) and anyone else with a claim on the property after you get a litigation guarantee from a title company.  Hopefully, you can find and serve “bad guy”.  Would also name as defendants and currents occupants of the house.  Let the defendants raise the AP question on a counterclaim and see where it goes.

[cid:image001.jpg at 01D719A2.F5497F70]
Gregory L. Ursich
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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 Kaitlyn Jackson
Sent: Thursday, March 11, 2021 3:46 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.

I also think you might consider that "Bad Guy" could make AP claim through "ouster" theory, which would/could give him a claim to (at least) partial ownership, right? I found some details on this type of claim here<https://digitalcommons.law.uw.edu/cgi/viewcontent.cgi?article=3343&context=wlr> by searching "ouster."



On Thu, Mar 11, 2021 at 3:30 PM Teague Pasco <pasco at pasco-law.com<mailto:pasco at pasco-law.com>> wrote:
Hi all,

My thoughts:   the bad guy's representation to the IRS that he does not own the property probably is a good argument that he had no intent to adversely possess the property.  It's well documented and made in a situation where ownership of the property would probably have been beneficial to the guy.   The question I think is whether this or other facts can overcome apparent  (1) hostile, (2) actual and uninterrupted, (3) open and notorious, and (3) exclusive use by bad guy for the statutory period.  The fact that he made no effort to remove Mom's name from mortgage might show that he fails at "open and notorious" during the statutory period.  I do know that in 2020 the WA SC issued a couple of decisions clarifying that there is a presumption for permissive use - I'd make baddie cough up the document your client supposedly signed.  It could resolve the question of permission or not.


Teague Pasco
 LL.M. - Taxation
1214 S. 68th St.
Tacoma WA  98408
pasco at pasco-law.com<mailto:pasco at pasco-law.com>
Land:  360-975-3387<tel:360-975-3387>
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On Thu, Mar 11, 2021 at 2:59 PM Christy M <talk2much84 at msn.com<mailto:talk2much84 at msn.com>> wrote:
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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