[WSBARP] Defeating Prospective Adverse Possession Claim

[Andrew Hay]

Wow - kind of a mess.  Beware of transferring the property via a statutory warranty deed.  The deed warrants title to the full legally-described property.  Mere knowledge by the buyer or a disclosure by the seller does not defeat the claim under the warranty.
Kiss's claim that the Popchois waived the warranties of the deed is without merit. At least since 1901, Washington courts have followed the rule that a grantee does not waive the covenants of a deed by having knowledge of a defect. Edmonson<https://plus.lexis.com/api/document?collection=cases&id=urn:contentItem:7Y5N-6830-YB0W-608M-00000-00&context=1530671>, 155 Wn. App. at 389<https://plus.lexis.com/api/document?collection=cases&id=urn:contentItem:7Y5N-6830-YB0W-608M-00000-00&context=1530671> (citing W. Coast Mfg. & Inv. Co. v. W. Coast Improvement Co.<https://plus.lexis.com/api/document?collection=cases&id=urn:contentItem:3RRR-4MP0-003V-74P2-00000-00&context=1530671>, 25 Wash. 627, 637, 66 P. 97 (1901))<https://plus.lexis.com/api/document?collection=cases&id=urn:contentItem:3RRR-4MP0-003V-74P2-00000-00&context=1530671>; accord Fagan v. Walters<https://plus.lexis.com/api/document?collection=cases&id=urn:contentItem:3RRR-2KD0-003V-70MC-00000-00&context=1530671>, 115 Wash. 454, 457, 197 P. 635 (1921)<https://plus.lexis.com/api/document?collection=cases&id=urn:contentItem:3RRR-2KD0-003V-70MC-00000-00&context=1530671>. "Such covenants warrant against  [*284]  known as well as unknown defects, and grantees with knowledge of an encumbrance have the right to rely on the covenants in the deed for their protection." Foley v. Smith<https://plus.lexis.com/api/document?collection=cases&id=urn:contentItem:3S3J-Y3J0-003F-W4CM-00000-00&context=1530671>, 14 Wn. App. 285, 292, 539 P.2d 874 (1975)<https://plus.lexis.com/api/document?collection=cases&id=urn:contentItem:3S3J-Y3J0-003F-W4CM-00000-00&context=1530671>. In Foley, both the grantee and grantor had knowledge of the defect, but as the Court of Appeals noted in this case, "[t]his is a distinction  [***17] without a difference." Edmonson<https://plus.lexis.com/api/document?collection=cases&id=urn:contentItem:7Y5N-6830-YB0W-608M-00000-00&context=1530671>, 155 Wn. App. at 389<https://plus.lexis.com/api/document?collection=cases&id=urn:contentItem:7Y5N-6830-YB0W-608M-00000-00&context=1530671>.
Andrew Hay
Hay & Swann PLLC
201 S. 34th St.
Tacoma, WA 98418
www.washingtonlaw.net<http://www.washingtonlaw.net>
andrewhay at washingtonlaw.net<mailto:andrewhay at washingtonlaw.net>
He/him/his
253.272.2400 (w)
253.377.3085 (c)


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>
www.mbaesq.com<http://www.mbaesq.com/>
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