[WSBARP] Defeating Prospective Adverse Possession Claim

Wed Jun 21 10:16:57 PDT 2023

A declaratory judgment as to what?  Ownership of the affected portion of the property?  Would that then negate all elements of adverse possession?

Or would an action for trespassing or ejectment be more appropriate (if push comes to shove)?

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 Britt, Christopher
Sent: 06/20/2023 4:31 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Defeating Prospective Adverse Possession Claim

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

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 Andrew Hay
Sent: 06/20/2023 3:46 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto: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<mailto:andrewhay at washingtonlaw.net>
He/him/his
253.272.2400 (w)
253.377.3085 (c)

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.

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