Daily Development for
Monday, October 12, 1998

by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
randolphp@umkc.edu

ADVERSE POSSESSION; REQUIREMENT OF HOSTILITY; PERMISSIVE USE: Use that is permissive at inception of a proposed adverse possession is presumed to remain permissive only until sale of servient estate to a stranger.

Miller v. Anderson, 955 P.2d 846 (Wash.App. 1, 1998).

The original owners of the servient parcel and the original owner of the dominant parcel recognized that the fence which purported to separate their lots diverged from the true plot line separating their lots. They entered into and recorded a formal agreement that accepted the platted line as the true boundary. The dominant estate was sold several times, ultimately to the Millers in 1986. The owners of the servient lot sold to the Andersons in 1986. The trial court held that, as a matter of law, upon the first sale in 1973 of the dominant estate, the permissive use was revoked and that therefore, the Millers, based upon tacking with their predecessors had adversely possessed the property for the required statutory period, and therefore were the owners of the disputed property.

On appeal: Held: Reversed: Washington Appellate Court held that the sale of the parcel held by the adverse possessor did not terminate the permissive use and therefore did not shift the burden to prove continued permissive use. The true owner was entitled to assume that the successor was using the property pursuant to the original permissive understanding. Instead, the permissive use did not end by operation of law until the sale of the true owner's estate. Therefore, the Andersons had only adversely possessed since 1986, and thus had not adversely possessed for the statutorily required period.

Note: Although this apparently was a case relating to adverse possession title, the court describes the "true owner" as the "servient estate" and the adverse possessor as the "dominant estate." These terms typically are used with respect to easement claims, not title claims. It is not clear whether the court really has in mind a clear notion of the distinction between prescriptive easements and adverse possession title.

The court refused to follow a line of Pennsylvania cases that had held that sale of either the dominant or servient parcel terminates a permissive use and renders subsequent use adverse. The Pennsylvania cases had reasoned that permission is necessarily personal, and does not run to successors. The court did, however, follow a line of Washington authority that held that transfer of the parcel terminates the permission.

Comment 1: The court specifically notes that the trial court had been asked to rule only on the basis of adverse possession, and that it therefore would not entertain arguments pertaining to the significance of the recorded boundary agreement other than adverse possession arguments.

Comment 2: Nothwithstanding the court's restriction of its analysis to adverse possession law, wouldn't a recorded boundary agreement put successors of both parcels on notice that the existing pattern of usage should not be deemed representative of a claim of right? The court found for the true owner anyway, so its finding that adverse possession might have started to run at the time the true owner transferred his title was mere dicta. But the editor believes it to be dangerous dicta under these circumstances, at least. Where the parties have recorded a clear statement that the usage by the owner of one parcel is not a demonstration of a claim of ownership to the property being used, then something more than a mere transfer of ownership ought to be necessary to clarify that the permission is being defied or ignored.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last six years, these Reports have been collated, updated, indexed and bound into an Annual Survey of Developments in Real Estate Law, volumes 16, published by the ABA Press. The Annual Survey volumes are available for sale to the public. For the Report or the Survey, contact Maria Tabor at the ABA. (312) 988 5590 or mtabor@staff.abanet.org

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. The same is true of all commentary provided by contributors to the DIRT list. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.