[WSBARP] Defeating Prospective Adverse Possession Claim

[Dwight Bickel]

Permission is often misunderstood. If the neighbor has been occupying Client's property without relying upon the permission of the Client, that is an adverse use, whether commenced with or without knowledge the use was adverse to the property records. The occupation is not required to be based upon innocence; it can be with knowledge of the line according to the property records. It must appear to the Client that the occupation is that which a person would do as the owner with a right to occupy.  Once that has commenced, the record owner, the Client in this scenario, cannot take away the Neighbor's right to claim ownership by use for ten years, by an unsolicited letter from Client to Neighbor saying the occupation has been with permission.  Neighbor is not relying upon permission. One year from now, if the Client or successor have not commenced an action to force Neighbor to move the fence, the Neighbor will have a right to claim ownership based upon adverse possession.
Make sure Client has an exception in the deed warranties for the matter. The escrow officer preparing the deed is not reliable to add a warranty exception, even if there is an exception to coverage listed upon the commitment. Many escrow simply state warranties are subject to CCRs and Easements that are recorded. The client will have warranty liability even though disclosed and known by the purchaser. See Edmonson v Popchoi [172 Wn.2d 272, 256 P.3d 1223 (2011)] for that authority.
Dwight A. Bickel
Real Property Title Advisor
Washington Title Professional
Dwight at dwightbickel.com<mailto:Dwight at dwightbickel.com>
http://dwightbickel.com

From: wsbarp-bounces at lists.wsbarppt.com <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>
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>
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