Agreement to an Adverse Use

 

 

The recent case of LeBleu v. Aalgaard, ____ Wn.App. ____ (No. 32908-9-III)(2016), a ruling from Division Three of the Court of Appeals, may best be summarized as “watch what you agree to, as you may be agreeing that another’s use of your property is adverse rather than giving them permission to use your land.”

If you are looking for a restatement of Washington’s Adverse Possession Law, or what is wrong with it, there is no better place than LeBleu v. Aalgaard, ____ Wn.App. ____ (No. 32908-9-III)(2016), a recent ruling from Division Three of the Court of Appeals, with it 12-page majority opinion, and 8-page concurring opinion, which lays out how Courts have phrased the State’s the adverse possession test over time, how they have stated and restated it, and the confusion that has developed over time with the phrasing used in these restatements. It will also be the focus of a series of articles on Washington’s Adverse Possession law.

To summarize the case, a land owner sold a portion of property to Deno, then later sold the remainder to Aalgaard. Deno and Aalgaard walked and measured their properties and established a boundary line. Thereafter, Aalgaard, with the assistance of Mr. Deno, built their home. Eighteen years later, Deno sold to LeBleu, who had his property surveyed, and as always the case, the boundary line agreed to by Deno & Aalgaard did not line up with the “true” boundary and the Aalgaard home had been built on the Deno/LeBleu property. LeBleu brought suit and Aalgaard counterclaimed under several theories, including adverse possession. The trial court ruled in favor of LeBleu, and the Court of Appeals sided with Aalgaard on adverse possession.

In ruling on the matter, the Court of Appeals noted the standard four-part adverse possession test, a party’s use of the claimed property must be: (1) exclusive, (2) actual and uninterrupted, (3) open and notorious, and (4) hostile and under a claim of right. Chaplin v. Sanders, 100 Wn.2d 853,857,676 P.2d 431 (1984). All of these elements must exist concurrently for at least 10 years.

The only element in contention in this case was #4, whether Aalgaard’s use had been “hostile.” LeBleu argued that the parties agreed on the boundary and further agreed that Aalgaard could use the land on the opposite side of the agreed boundary line.

 

 

 

 

 

Therefore, Aalgaard’s use of the property was permissive, which defeats “hostile” use.

First, the court examined the meaning of “hostile” use:

The “hostility/claim of right” element of adverse possession requires only that the claimant treat the land as his own as against the world throughout the statutory period. The nature of his possession will be determined solely on the basis of the manner in which he treats the property. His subjective belief regarding his true interest in the land and his intent to dispossess or not dispossess another is irrelevant to this determination.

With this definition in mind, the Court found that Aalgaard met the “hostile” use definition. Then the Court looked at the agreement between Deno and Aalgaard to determine if the use was “permissive” – was it an agreement that Aalgaard had Deno’s permission to use the land on the other side of the agreed boundary, which would defeat “hostility,” or was it an agreement that Deno recognized that Aalgaard was claiming ownership to all land on the opposite side of the boundary. The difference is key, as use cannot be hostile if it is with permission.

Ultimately, the Court of Appeals sided with Aalgaard, holding that the Deno-Aalgaard boundary line agreement was not a grant of permission by Deno for Aalgaard to use land, but an acknowledgment and agreement by Deno that Aalgaard was claiming the land as his own.

The next several articles discussing this case will step back and look at each element in the four-part Adverse Possession test, starting with “exclusive” use.

 

 

This blog post is offered for general information and educational purposes only. It is not offered as legal advice and does not constitute legal advice or opinion. Although I intend to keep this information current, I do not promise or guarantee that the information is correct, complete, or up-to date. You should not act or reply upon the information in this post without seeking the advice of an attorney.

Leave a Reply