[WSBARP] [WSBAPT] Prescriptive Easement Claim and Probate

Wed Aug 2 15:58:06 PDT 2023

Thanks, Eric.  That is my reasoning as well.

Samuel M. Meyler

Meyler Legal, PLLC 

1700 Westlake Ave. N., Ste. 200

Seattle, Washington 98109

Tel:  206.876.7770

Fax:  206.876.7771

Email:   <mailto:samuel at meylerlegal.com> samuel at meylerlegal.com

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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
On Behalf Of Eric Nelsen
Sent: Wednesday, August 2, 2023 3:30 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>; 'WSBA Probate &
Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] [WSBARP] Prescriptive Easement Claim and Probate

Your instinct is correct, the creditor claim process doesn't apply to such
claims. The statutory process is only for claims for money "as a general
charge against the assets of the estate," meaning a mere unsecured debt owed
by the decedent. A dispute over ownership of specific property that the
Estate also claims is not subject to the process. These aren't exactly on
point for adverse possession, but see O'Steen v. Wineberg's Estate, 30
Wn.App. 923 (1982), Compton v. Westerman, 150 Wash. 391 (1928), Gottwig v.
Blaine, 59 Wn.App. 99 (1990), Baird v. Knutzen, 49 Wn.2d 308 (1956), Foley
v. Smith, 14 Wn.App. 285 (1975).

For adverse possession, I think it's logical that a creditor claim does not
need to be filed. The claimant has actual possession of the claimed
property, and it's really the Estate who should have to file for trespass
and ejectment against the claimant. If that suit by the Estate to recover
the property is barred by 10-year statute of limitations, then conversely
the claimant has to be entitled to quiet title in themselves.

Let's say the claimant doesn't bother to file against the Estate. The Estate
will eventually deed the property either to a buyer or to heirs. At that
point the claimant can sue the current holders of the property, based on
adverse possession, and again the lack of a claim against the Estate can't
be a problem. Otherwise, every time a property owner died, all adverse
possession claims against them would be re-set to zero, contrary to the
principles of tacking of adverse possession.

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> 

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
samuel at meylerlegal.com <mailto:samuel at meylerlegal.com> 
Sent: Wednesday, August 2, 2023 2:49 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com
<mailto:wsbarp at lists.wsbarppt.com> >; 'WSBA Probate & Trust Listserv'
<wsbapt at lists.wsbarppt.com <mailto:wsbapt at lists.wsbarppt.com> >
Subject: [WSBARP] Prescriptive Easement Claim and Probate

Is the claimant of a prescriptive easement and/or adverse possession against
a decedent's property entitled to notice to creditor and are such claims
subject to claim limitation periods in probate?  In other words, is a claim
for a prescriptive easement and/or adverse possession barred if the claimant
fails to present the claim within the limitations period set forth in RCW
11.40 et seq.?  

I am not finding any authority directly on point.  It would seem strange
that claims that are considered perfected after the required period would be
barred and I would not call a claimant in this scenario a "creditor," but
these surely are "claims."  

Sam

Samuel M. Meyler

Meyler Legal, PLLC 

1700 Westlake Ave. N., Ste. 200

Seattle, Washington 98109

Tel:  206.876.7770

Fax:  206.876.7771

Email:   <mailto:samuel at meylerlegal.com> samuel at meylerlegal.com

NOTICE:

This electronic message contains information which may be Confidential or
Privileged and constitutes an electronic communication within the meaning of
the Electronic Communications Privacy Act 18 USC 2510. The information is
intended to be for the use of the individual or entity named above.  If you
are not the intended recipient, please be aware that any disclosure,
copying, distribution or use of the contents of this information is
prohibited.  If you received this transmission in error, please notify the
sender and delete the copy you received together with any attachments.
Thank you.

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