I spent the better half of last week at the annual conference of LSAW (Land Surveyors Association of Washington). While there, not only did I have the chance to listen to some interesting presentations, I was given the opportunity to give a presentation on adverse possession … twice.
As surveyors are often the people that identify the titular lines of property which on many if not most occassions are not necessarily in accord with recognized boundary lines, adverse possession is a legal doctrine of significant interest to them.
In preparing my comments for an earlier presentation of this talk, I came to realize something truly bizarre about the new adverse possession law. It is this. Though this statute is placed within RCW 7.28 and thus ostensibly pertains to actions to quiet title and all the emotion that went into it as it progressed legislatively was to make the law more difficult for adverse possessors, the actual language of the statute which relates only to when a claim of adverse possession is made helps adverse possessors!
When a claim of adverse possession is made two things may happen at the discretion of the Court. After sufficient evidence (albeit that which may not necessarily clear, cogent, and convincing) is given for its ruling, the court may first make a ruling which relates toward the amount of taxes that the title holder had overpaid.
Well, in my opinion this first part regarding taxes was always a rather silly quest. Here, “the juice isn’t going to be worth the squeeze.” This is to say the cost of hiring an expert witness to fight this out is going to in most cases be more costly than the gain. Moreover, we are not looking at the loss of the value of the land. We are simply looking at the loss of the money that has been paid to the tax-man while the land has been in the actual possession of the adverse possessor. No big whop!
However, the second discretionary tool identified for the court is a “big whop”! It suggests that the court may shift reasonable legal fees and costs to the prevailing party in cases where adverse possession is claimed.
Query: Who claims adverse possession? Answer: The putative adverse possessor.
What does this mean? My reading of the statute is that only the putative adverse possessor may put the negotiating strength of RCW 7.28.083 into play.
In other words, if the adverse possessor has a strong case, well then the adverse possessor should go ahead and claim it because he, she or they can use RCW 7.28.083 to strike sufficient fear in the title holder of a possible “double down situation” (i.e. potential threat of having to pay both the title holder and the adverse possessor’s attorney fees and costs) that the title holder may give up.
Noticeably, this will also likely mean that some people with lousy adverse possession cases will try to still gain this effect by the superior huff, puff, and bluff of larger law firms who may be generating more value by the petty pretty nature of their stationary than that of their legal analysis.
The third route that may occur is to look to one of the other means of doing a non-written form of litigous boundary adjustment. These include: common grantor, parole agreement, estoppel in pais, laches, prescriptive easement, and mutual recognition and acquiescence.
The final point that I made to surveyors is that because this third route involves legal doctrines almost completely bereft of jurisprudential precedent, clients are going to be fairly anxious about their attempt. So, what can be expected…
I suggest that there will likely be many more second opinions (i.e. contra-party surveys performed). Now fortunately surveyors are fairly collegial and they rely on each others work.
But, these are hard economic times for folks that have businesses which ride on the waves of the real property markets. So there may be some people who may identify alternative – perhaps justifiably – means of interpreting title descriptions which may “better” assist their clients.
It then may come down to dueling surveys where each surveyor is called to defend his or her position in court and seeks to tear down that of the other surveyor.
In the legal arena, we realize that this is not personal. Yet we are at pains to remind ourselves that we should be more civil to our fellow legal colleagues. In other words, though trained not to, we also can find ourselves caught up in the emotion of it all at times.
All said however, surveyors don’t strike me as being so finely acculturated as to be able to mercilessly cut out each others spleen in the morning and then go out for drinks in the evening. That’s a pleasant collegiality that is generally the preverse of only lawyers, investment bankers, and aluminum siding salesman. What do you think?