Olympia Real Estate Lawyer Blog

A recent Washington Supreme Court opinion, Edmonson vs. Popchoi, provides some clarification and guidance for those of us who practice Washington Real Estate Law. The decision clarifies the duty of the grantor of a statutory warranty deed to defend against another's claim of title.

In Washington State, a good amount of title to property is conveyed pursuant to the statutory warranty deed. Statutory warranty deeds are governed by RCW 64.04.030. A statutory warranty deed sets forth several covenants including a covenant/warranty to defend the title conveyed against any and all persons who make claim against the title.

The Supreme Court in Edmonson held that the warranty to defend pursuant to a statutory warranty deed means that the grantor of a statutory warranty deed is obligated to defend in good faith against another's claim to title. The Court further held that this duty to defend is breached by the grantor's independent decision to settle and concede the claim without evident consideration of the merits of claim.

Pursuant to statute, the filing of a land use petition in superior court in Washington must occur within 21 days of the final determination by a local jurisdiction's body or officer with the highest level of authority to make a land use determination. RCW 36.70C.040(3).. In Mellish v. Frog Mountain Pet Care decided July 28, 2011, the Washington Supreme Court addressed the issue of whether a motion for reconsideration properly filed with a county hearing examiner tolled the running of the 21-day time limit for filing of a land use petition in superior court until such time as the motion for reconsideration was decided.

This strikes me as a very fair and reasonable reading of the statute governing land use petitions (commonly known as LUPA). The courts have reliably ruled that a party is required to exhaust all appropriate administrative remedies, which may include a motion for reconsideration, prior to filing a land use petition. Given this requirement, it is only fair and equitable, and a reasonable reading of the statute, that a motion for reconsideration tolls the 21-day appeal timeline to allow a party to exhaust all appropriate administrative remedies.

A common issue in my experience as an attorney dealing with real estate and property issues, particularly easement issues, is the expansion of the use of an easement to other uses. The purpose an easement is used for is generally referred to as the scope of the easement.

Determining the scope of an express easement (an easement created via a written deed)is generally straight-forward. A well-drafted easement will expressly state the purpose of the easement. In a large percentage of express easements, the purpose is limited to ingress or egress (i.e. access to a specific property) and no further limitations are included in the language. However, on occasion, issues of scope of use of an express easement may still arise.

A recent opinion out of Division III of the Washington State Court of Appeals deals specifically with the issue of the scope of an express easement in the case of Wilson & Son Ranch, LLC v. Hintz. In this case, the defendants, the Hintzes, had been utilizing their property, and subsequently an easement to access the property, for numerous years as a fish hatchery. Sometime in 2001, the Hintzes ended their fish hatchery business and began hosting outdoor events, like weddings, on their property. The owners of the neighboring property, whose land the Hintzes had an easement across to access their land, were unhappy over the change of use and sued the Hintzes. The neighbors' primary argument was that the Hintzes use of the access easement for the purpose of an outdoor events business exceeded the scope of the easement.

I have followed the controversy regarding the Thurston County Critical Area Ordinance and the Mazama Pocket Gopher with great interest. As a former Assistant Attorney General, I represented the Washington Department of Fish and Wildlife and have a good understanding of the listing process in Washington as well as the federal listing process. The process is an interesting one from beginning to end.

This post is not designed to wade into the local controversy regarding Thurston County's reaction to the potential federal listing of the pocket gopher. Rather, I wanted to comment on the issue of federal listings and the Endangered Species Act (ESA) in general.

I have been meaning to post on a very interesting New York Times (NYT) article on this subject for a while. According to the NYT, the United States Fish and Wildlife Service has received, over the last four years, requests from environmental groups for more than 1,230 species to be listed under the ESA. This is a massive increase in listing requests when compared to the previous 12 years which averaged only 20 requests per year.

A common complaint about the legal system across the United States, and in Washington State, is that the cost of litigation can be prohibitively expensive. Attorney fees and other litigation costs are only recoverable in the American system in those rare instances when recovery is provided pursuant to contract or statute. In my practice as a Washington State real estate attorney, I've found that the cost of litigation can in many cases lead to the party with the least amount of resources being forced to agree to an unfavorable settlement due to the expensive nature of litigation.

This is particularly true in property dispute cases like adverse possession where, in most cases, the prevailing party was not entitled to recovery of its costs and attorney fees. Enter the Washington State Legislature. This past legislative session the Legislature passed Engrossed Substitute House Bill 1026 (ESHB 1026). In this bill, the Legislature has provided that the prevailing party in an action filed on or after July 1, 2012 asserting title to real property by adverse possession may be awarded all or a portion of its costs and fees if the court determines that such an award is just and equitable.

While the bill does not provide for a mandatory award of fees and costs to the prevailing party and gives courts considerable discretion whether to make such an award, the bill is a solid start to providing for reasonable solutions to property disputes by providing for a potentially level playing field for litigants.

A recent decision of the Washington State Court of Appeals, Division I, yields an interesting holding in a rare situation, namely can a trespasser establish a nonconforming use. While this is a rare fact pattern, the case provides an interesting analysis for Washington land owners who may be dealing with a nonconforming use issue.

A nonconforming use is the use of property which lawfully existed prior to the enactment of a zoning ordinance or restriction, and which is maintained after the effective date of the ordinance, even though the use does not comply with the current zoning restrictions for the location. If the use is established prior to the enactment of the zoning ordinance and consistently maintained, the nonconforming use becomes a vested legal right and is permitted to continue on the property. While nonconforming uses are disfavored, they are allowed to continue to avoid constitutional issues. Examples of nonconforming uses can include, but are not limited to, buildings that are taller than current height restrictions allow and business activities that would not be permitted under current zoning.

In McMilian v. King County, issued on May 2, 2011, by Division I of the Washington State Court of Appeals, the Court of Appeals dealt with a novel situation. The Appellant, McMilian, argued that a nonconforming use can be lawfully established even where the individual engaging in the use of the property is a trespasser. This is a novel question in Washington State.

One of the first questions I always raise when evaluating a water boundary issue is whether the waterbody at issue has been determined in a court of law as navigable or not. The reason for this is fairly straightforward; if the waterbody is navigable (or has been meandered as explained below), the boundary line issue will in the vast majority of cases involve the State of Washington as a party.

As mentioned in a prior post, the reason the issue of navigability is so important is because the State of Washington asserts ownership of the beds and shores of all waterbodies that were navigable at the time of statehood pursuant to Art.17, Sec. 1 of the Washington State constitution.

The Washington Department of Natural Resources (DNR) manages state-owned aquatic lands and as such has found itself involved in aquatic land ownership issues for a while. DNR defines a navigable body of water as a body of water that is "capable or susceptible of having been or being used for the transport of useful commerce." WAC 332-30-106(41). Further, as mentioned in a previous post, if a waterbody has been meandered by government surveyors, DNR considers the waterbody to be navigable unless otherwise declared by a court.

In my experience as a Washington State real estate and property attorney, one of the first questions I ask when dealing with a waterfront boundary issue is whether the body of water at issue has been meandered. The presence of meander lines can impact the potential parties involved in any determination of the extent of waterfront ownership.

Meander lines are lines laid out by federal surveyors, largely in the 19th century, to identify important bodies of water on federal surveys. Meander lines were intended to approximate the shoreline not only for all navigable bodies of water, but also for some smaller lakes and streams that were likely not navigable. The size of the body of water that was meandered depends on the instructions at the time to the federal surveyors by the United States Government. As such, a variety of sizes of bodies of water have meander lines.

The impact of meander lines on evaluating the extent of ownership for a water front owner is largely due to the position of Washington State on the presence of meander lines. The State of Washington considers all water bodies that have meander lines established by federal surveyors to be navigable unless otherwise declared by a court of competent jurisdiction. WAC 332-30-106(41). If the water body is navigable at the time of statehood, then the State of Washington asserts ownership of the beds and shores of the water body pursuant to Art. 17, Sec. 1 of the Washington State constitution.

Washington State has water. And I'm not talking about the rain, other than to note that it is raining right now and may not stop until the end of May. Nor am I talking about water rights, groundwater, or the puddles in your driveway. Rather, I'm referring to Washington State's abundance of rivers, lakes, the Puget Sound, and the Pacific Ocean. This abundance of water bodies means that waterfront ownership, whether property on a lake, on the coast, or fronting a river, is not uncommon. Two very common questions surrounding waterfront ownership are "based on my waterfront ownership, who owns the land under the water that abuts my property" and "where is my specific water-side boundary line for my property?"

If you are looking for an easy answer to that question, the best and easy answer is "depends on a large variety of factors". Ownership of the land beneath water (commonly known as aquatic lands) as well as the establishment of your waterside boundary line depends on such factors as the type of the water body, the history of the water body, whether the water body is tidally influenced, whether the water body was meandered (essentially survey lines laid out by federal surveyors to approximate the shoreline of bodies of water), and deed language. For example, if you own property on a water body that was navigable at statehood in 1889 (the question of whether a water body is navigable itself can be a complex legal analysis in certain situations), the aquatic or submerged land abutting your property is, in a large portion of the cases, owned by the State of Washington. If the water body was not navigable, ownership of the aquatic lands is even more fact-specific as your title history may need to be examined.

One of my first "wow" moments during my studies at the University of Washington School of Law was learning of the doctrine of adverse possession. Adverse possession is a legal doctrine that allows the acquisition of legal title to private land without the landowner's consent where a claimant possesses the property for at least 10 years and meets the specific elements of the doctrine.

From my experience, the doctrine of adverse possession makes the average non-lawyer squirm. In my conversations with clients and other non-lawyers, the common reaction is "isn't that like legalized theft"? To many, the concept of a person legally, whether pursuant to good faith belief or wrongful motives, being able to gain title to another's property without payment is crazy. I absolutely understand that response. In later posts, I'll dive further into some of the common issues surrounding claims of adverse possession.

While the property of private citizens can be adversely possessed, the property of state agencies and the property of local governments acting in a governmental capacity cannot be adversely possessed if the adverse possession time period accrues during government ownership pursuant to RCW 4.16.160. While representing the State in property disputes, I routinely utilized the governmental exemption from adverse possession in defending against such claims.