[WSBARP] Defeating Prospective Adverse Possession Claim

Tue Jun 20 16:31:11 PDT 2023

Quiet title will not suffice.  What you would want - if you filed something
- would be declaratory judgment.  There is nothing of record (at least from
the facts you outlined) that would require clearing.

Also, you said 9 years correct?  I previously stated that it takes 10 years
for adverse possession unless the neighbor pays taxes.  Was there some
reason you even want to file suit?

Christopher G. Britt, M.A., J.D.

Attorney at Law

1403 S. Grand Blvd., Suite 201-S

Spokane, WA 99203-2278

P: 509.455.3713
D: 509.316.2131
F: +1.509.455.3718 (must dial 1 before area code)

E: *christopher at lucentlaw.com <christopher at lucentlaw.com>*

Web: www.lucentlaw.com

On Tue, Jun 20, 2023 at 4:16 PM Mark Anderson <marka at mbaesq.com> wrote:

> It sounds like a quiet title action is the only way to go.
>
> Unless… What if the neighbor voluntarily removes his fence?
>
>
> *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
> 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
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>
> *From:* wsbarp-bounces at lists.wsbarppt.com <
> wsbarp-bounces at lists.wsbarppt.com> *On Behalf Of *Andrew Hay
> *Sent:* 06/20/2023 3:46 PM
> *To:* WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> *Subject:* Re: [WSBARP] Defeating Prospective Adverse Possession Claim
>
>
>
> 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* <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
> 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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