[WSBARP] Prescriptive Easement Claim and Probate

[Roger Hawkes]

Eric: in your opinion, would a creditors claim notice sent to adjoining land owners have any preclusive effect for a later asserted ap claim?

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-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: [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:  samuel at meylerlegal.com<mailto:samuel at meylerlegal.com>

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