[WSBARP] Defeating Prospective Adverse Possession Claim

[Carmen Rowe]

I somewhat skimmed the digest so I may be wrong, but not sure I saw the
following points yet in response to your question.

One, there is a simple answer to whether you can unilaterally give
permission: No.

I have somewhere caselaw/analysis on that, as we had that discussion with a
party who claimed to have "permitted" my client to have his landscaping
there via letter. The caselaw is unambiguous in this answer, unilateral
permission does not stop the clock (and if anything, simply affirms the
hostile use). I don't have access just now and won't until next week, but
if you need the authority drop me a line and I can send.

The only remedy is ejectment, you have to have taken legal action to eject
the neighbor (filed suit) to stop the clock.

I think I saw in there something in the P&SA disclosing the issue/waiving
any claim, and I think that's the right approach. But given the time
already spent, if you really want to tighten it up, I'd also make sure
there is a written disclosure/waiver noting the "time is of the essence if
you are buying thinking you'll eject the neighbor yourself" element- say,
that the time period for ripening any potential claim by neighbor resulting
from the encroachment "has either already been met or will be in the near
future, such timing up to the seller to determine in accepting the
property".


Carmen Rowe



Phone: (360) 669-3576 (direct cell)
Email:  Carmen at GryphonLawGroup.com

*Olympia/Lacey and primary mailing office:*
1415 College Street SE, Lacey, WA 98503

*Seattle office: We are currently moving our Seattle location - notice of
new address coming soon!*

*NOTICE REGARDING OPERATIONS AND COVID-19:* We see our community as working
together to address COVID and its impact on our lives, health, and
business. The nature of our practice lends itself well to virtual operation
and we offer a range of flexible solutions to best work with your needs and
preferences. We are here to support you.

*Privileged and confidential: *This message is confidential. If you receive
this message in error, please let us know, and please delete and disregard
any information it contains. We thank you for your respect in not sharing
this email with anyone.

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 Mark Anderson
Sent: Tuesday, June 20, 2023 1:55 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:
wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] Defeating Prospective Adverse Possession Claim

Dear Listmates:
Client owns real property adjacent to real property owned by "Neighbor."
Client and Neighbor do not get along.  Client reports that Neighbor has a
fence that has encroached on Client's property for 9 years.  Client would
like to avoid any future claim of adverse possession.  Client has agreed to
sell the property to a third party.  The third party is aware of the
encroachment and is willing to purchase the property subject to that
encroachment.
Will adverse possession be defeated if, at this point, Client grants
permission for Neighbor to use the property as it is currently used?  I am
contemplating either a recorded easement or a license for this purpose.
And would Neighbor have to somehow "accept" this permission?
Thanks in advance.
Mark B. Anderson
ANDERSON LAW FIRM PLLC
821 Dock St  Ste 209  PMB 4-12
Tacoma, Washington 98402
+1 253-327-1750
+1 253-327-1751 (fax)
marka at mbaesq.com<mailto:marka at mbaesq.com>
www.mbaesq.com<http://www.mbaesq.com/>
CONFIDENTIALITY NOTICE
This transmission is confidential and is intended solely for the use of the
individual named recipient. It may be protected by the attorney-client
privilege, work product doctrine, or other confidentiality protection. If
you are not the intended recipient, or the person responsible to deliver it
to the intended recipient, be advised that any dissemination, distribution,
or copying of this communication is prohibited. If you have received this
transmission in error, please immediately notify the sender via e-mail or
by telephone at (253) 327-1750 that you have received the message in error,
and then delete it. Thank you.

***Disclaimer: Please note that RPPT listserv participation is not
restricted to practicing attorneys and may include non-practicing
attorneys, law students, professionals working in related fields, and
others.***
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20230803/e94ba033/attachment.html>