gray-large.pngIn yesterday’s post, I reviewed the case Lilly v. Lynch, 88 Wn.App. 306 (Div. II 1997). For those not wishing to review, it was basically about Ms. Lilly going beyond what seems to have been a longstanding boundary wall which was used to recognize her boundary from a chain of previous neighbors. She did this by landscaping (presumably without asking permission from Mr. Lynch).

Mr. Lynch’s response was typical. He brought a surveyor in to figure out what land he actually had. The surveyor found that not only was Ms. Lynch not entitled to land beyond the boundary wall, but that her boat ramp was actually on Mr. Lynch’s land.

As an initial comment, if Ms. Lilly wanted to beautify the land beyond the boat ramp, she probably could have simply asked for permission to do so and an unsuspecting Mr. Lynch would have said: “Sure.”

However, this form of verbal permission, notwithstanding our recent exploration of verbal permission in this post about the zany case Kunkel v. Fisher, is “not necessarily” [I love that legal, double negative punt] going to fly in front of another judge. So, it is best to draft up a simple permissive use arrangement … but I digress. 

Assuming Ms. Lilly is the overreaching ninny which she appears to be when reading within the four corners of this case, how is she going to play this through.

Well, she has some sort of a letter from Mr. Lynch which indicates that the boundary wall has always been considered to be the boundary. So, though I generally do not like mutual recognition and acquiescence, I think that is the best claim for Ms. Lilly to make.

The reason for this is that RCW 7.28.083, which allows cost shifting, is put in play only when there is a claim of adverse possession. Now, in my simple mind this suggests that only the adverse possessor is in control whether RCW 7.28.083 is “put in play” or not. 

[However, I will admit I have heard one lawyer indicate that the title holder might be able to seek to quiet title, but also claim that the neighbor is an adverse possessor. How that works without being either an admission or something that the putative adverse possessor subsequently disclaims (assuming advantageous to do so), I can’t [yet…perhaps] get my brain around.]

Back to Ms. Lilly though, I would counsel against her claiming adverse possession. The trial court has the discretion of awarding Mr. Lynch’s fees and despite the fact that she pulled back from her ambitions beyond the boundary wall, the court might still find that the land is Mr. Lynch’s and award him his attorneys fees.

The trial court has this discretion and the Washington Supreme Court has not yet had a chance to cabin the trial courts proper use of this discretion as the law has been effective only y months (i.e. far too early in time to have knocked at the door of the Supreme Court for a hearing). 

My thought here is that: “But for” the fact that Ms. Lilly started trespassing on Mr. Lynch’s property, this whole darn mess would never have been before the court.

Looking at this case through Mr. Lynch’s eyes, I would say this case is going to be one of balancing the high stakes of appearing to stay (if not actually able to do so) on the “high road” while still engaging in a war of reasonable realpolitik with Ms. Lynch. That’s an expensive game that lawyers are willing to be paid to play.

Now, I will add one last thing too. Though, I don’t know the ultimate disposition of this case, I suspect that it is higly likely that the boundary wall became the boundary line.

Assuming so, don’t you think that if a couple of reasonable attorneys were able to respectively collar their clients, they could figure that out for with each of their clients for $5,000 – $7,000 instead of each at a cost of 10X (i.e. 50,000 – $70,000 per).

This is the promise which RCW 7.28.083 provides. Unfortunately, we don’t know yet if – or perhaps more properly ‘to what extent’ – this promise will be broken.gray-small.png