Just as with a Quit Claim Deed, the surveyor has been out and the title line and current line of occupation don’t line up. Your wallet isn’t lined with an extra several $10,000s to sort out the issue. Moreover, so long as your neighbor doesn’t try to later hornswoggle you, you do realize that the land isn’t worth getting into a big scrum over. In these types of situations, a license might be exactly what is most suitable.
Unfortunately – except for the part about not just having several $10,000s [to spend on more worthwhile things] – this is often just a dream. Bringing it down to relity, the first question to ask is: whether or not the situation has been this way on the ground for less then or in exess of the statutory period which in Washington is in the vast majority of cases 10 years.
If it is less, the title holder is in a great position to difuse the situation. If more, this invariable ends up as a defensive posture which the title holder takes toward an adverse possession when contemplating or in litigation.
For people who live in the real world, a neighbor who uses a small portion of land is generally not going to be raked over the coals by the title hoder. It is allowed by permission whether directly or implicitly. But, attorneys don’t see the real world for what it is. Intead, they come in after the fact and look at pieces of paper – which they like to call documents and exhibits – with a magnifying glass to find all of life’s little imperfections. So, in this type of situation your attorney will ask where is this agreement documented. “Well we’re neighbors … it’s not,” you say. [In their mind they are thinking, of course not and your my next victim client.] Outwardly to you though, it’s … “Hmm? Interesting.”
Here again, are you going to allow your emotions to bait you into a war neither you nor your neighbor can fight? Or, are you going to explore the alternative remedy of granting a license?
License is the legal way to indicate a grant of permission by the title holder to the adverse possessor claimant. Often times a claim of permission is given by the title holder as a defensive argument to counter an adverse possession claim. In such cases, the title holder claims that permission – whether expressly or tacitly – was provided to the adverse possessor claimant and as such the adverse possessor had not exerted a sufficient amount of the legal element – hostility – to be deemed to have exerted a superior right to the land at issue.
The strength of this counter argument will generally rest on evidence. Although rare, there are times when this evidence comes out from previous correspondence between the neighbors. Much more commonly, this evidence comes from witness declarations. Unfortunately, willingly obtaining witness declarations from other neighbors can often be difficult because they want to stay out of the fight. Witness declarations from previous owners may or may not be more easily obtained. Yet before exerting the time and money to obtain former owner declarations, be clear as to the evidentiary strength a fact finder may grant to them. This effort may result in waste.
A license may also be used to settle a dispute. While in theory a title holder could grant a revocable license, in the real world this is a complete impracticality. Instead, any dispute resolution which involves a license is going to be one which is irrevocable per its terms. Explicitly, this means that once granted, unless the licensee either voluntarily gives it up, the only way that it ends is when a defined event occurs. The most common defined event ending a license occurs when the license term ende, or the licensee sells or dies.
In that a sale or death is outside the control of the licensor, a license often does not provide an adequate degree of resolution. Additionally, the time and cost of producing a license after disputants determine to use it as the mechanism of settlement is roughly the same as other more permanent solutions. Because of this, you should work closely with your attorney to determine if the costs and benefits work out best for you. Cheers!