[WSBARP] Defeating Prospective Adverse Possession Claim

[Mark Anderson]

Thanks, Carmen!

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/>
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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Carmen Rowe
Sent: 08/03/2023 12:58 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Defeating Prospective Adverse Possession Claim

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

[https://ci3.googleusercontent.com/mail-sig/AIorK4yaIwO8NwDh1yJGQWP1qK1vhwcBcK5yYclhzfMrEc3GuEfI5eiJ-wA30feUaQTq_2U2bQPszU4]

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

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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<mailto:wsbarp-bounces at lists.wsbarppt.com>> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com><mailto: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><mailto: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><mailto:marka at mbaesq.com<mailto:marka at mbaesq.com>>
www.mbaesq.com<http://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.

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