cstr

OFFICE MEMORANDUM
To: Prof.
From: Student
Date: November 21, 2007
Re: Ms. Maxine Hunt’s adverse possession issue

I. QUESTION PRESENTED

Under the Washington State law, can Healthy Life Camps (HLC) claim title of Ms. Hunt’s property on the ground of adverse possession?

II. BRIEF ANSWER/CONCLUSION

No, probably. HLC may not claim title through its possession of Ms. Hunt’s property since the summer of 1997, because HLC may hardly prove adverse possession by its maintenance of the facilities on Ms. Hunt’s property and by a “No Trespassing” sign it set up on the dock.

III. STATEMENTS OF FACTS

Ms. Hunt’s property is a two-acre waterfront parcel near a lake and is located in the eastern part of Washington State. She inherited the property in 1995 for her grandfather. Her grandfather bought the property in 1953, and from 1953 until the earlier 1990s her grandfather and his relatives used the property by camping on the site and using a small dock for swimming, fishing, and boating. Before Ms. Hunt moved to Missouri in 1996, she and her family spent one weekend at the property in the summer of 1995. She did not visit the property until August 2007. However, as an owner she has continued to pay all of the taxes and assessments.

In 1991, Healthy Life Camps (HLC) bought a five-acre parcel adjacent to Ms. Hunt’s property. Since 1993, HLC has used its property as a summer camp for children with serious illnesses or disabilities. Also, since 1993 HLC has been using Ms. Hunt’s property four or five nights for eight weeks each summer for “campouts” during which the children pitch and stay in tents, cook over a fire, and use the dock. Besides, to facilitate these campouts, HLC has maintained the campsites, the fire area, the outhouse, and the dock.

In February 1997, HLC sent Ms. Hunt a letter asking her whether it could continue using her property for campouts. But Ms. Hunt never did respond to it. Further, during the summer of 1997, for unclear reasons HLC posted a “No Trespassing” sign on the dock, and the sign is still there.

Although several years later the land around the lake has become more and more developed, both HLC’s and Ms. Hunt’s properties are in the forested and still relatively undeveloped area. Most of the property owners use their land only during the summer.

In August 2007, Ms. Hunt and her family visited her property, intending to spend a few days camping on the lake. When they got there and found that the HLC children were on her property, Ms. Hunt went to HLC’s camp headquarters and talked to the director, Dr. Stark. Dr. Stark said that Ms. Hunt’s property belonged to HLC. Ms. Hunt and her family did not spend that night at the property, but they did spend the next night there after the children left. However, HLC never acted as an owner of Ms. Hunt’s property to ask Ms. Hunt and her family to leave.

IV. DISCUSSION

HLC may not claim title to Ms. Hunt’s property through adverse possession because of lack of at least two elements of adverse possession.

A. Authority

This memorandum is based on the published opinions from the Supreme Court of Washington and Division Three of the Court of Appeals (or its precedent). First, the Division Three of the Court of Appeals has the jurisdiction for the appellate court review because Ms. Hunt’s property is located in the eastern part of Washington State. See WASHINGTON STATE ADMINISTRATIVE OFFICE OF THE COURTS, A CITIZEN’S GUIDE TO WASHINGTON COURTS, 18-20 (2001), http://www.courts.wa.gov/newsinfo/resources/jury_guide/citguide.pdf.

Secondly, rule 14.1(a) of Washington State Court Rules: General Rules (2007) provides: “A party may not cite as an authority an unpublished opinion of the Court of Appeals.” Division Three further held that “[u]npublished opinions have no precedential value and should not be cited or relied upon in any manner.” Mendez v. Palm Harbor Homes, Inc., 111 Wash. App. 446, 472 (Wash. Ct. App. 2002) (citation omitted). Thus, the unpublished opinions of Division Three will not be considered.

B. Governing Law

“In order to establish a claim of adverse possession, there must be possession that is: (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile. Possession of the property with each of the necessary concurrent elements must exist for the statutorily prescribed period of 10 years. As the presumption of possession is in the holder of legal title, the party claiming to have adversely possessed the property has the burden of establishing the existence of each element.“ ITT Rayonier, Inc. v. Bell, 112 Wash. 2d 754, 757-58 (Wash. 1989) (en banc) (citations omitted).

Here, it is undisputed that Ms. Hunt is the owner of her property because she inherited it from her grandfather and has paid taxes and assessments. Thus, HLC has a burden of proof to show that these four elements concurrently last for at least ten years.

The second and third elements may last for at least ten years in Ms. Hunt’s case. Regarding the second element, “actual and uninterrupted,” “[i]t has become firmly established that the requisite [actual] possession requires such possession and dominion ‘as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of like nature and condition.’” Howard v. Kunto, 3 Wash. App. 393, 397 (Wash. Ct. App. 1970) (citations omitted). In Howard, the court held: “[O]ccupancy of tract B during the summer months for more than the 10-year period by defendant and his predecessors, together with the continued existence of the improvements on the land and beach area, constituted ‘uninterrupted’ possession within this rule.” Id. at 397-98.

Here, since 1993 HLC has been using Ms. Hunt’s property four or five nights for eight weeks each summer, and it has also maintained the campsites, the fire area, the outhouse, and the dock. Thus, the second element is undisputed if the ten years period starts from 1993, and it lasts for at least ten years.

Regarding the third element, “exclusive,” “[p]ossession itself is established only if it is of such a character as a true owner would make considering the nature and location of the land in question. . . . [U]se alone does not necessarily constitute possession. The ultimate test is the exercise of dominion over the land in a manner consistent with actions a true owner would take.” ITT Rayonier, Inc., 112 Wash. 2d at 759. In ITT Rayonier, Inc., the possessor occasionally used the disputed property and never excluded his neighbors from using it. See Id. at 756-57. The Supreme Court held that the possessor’s “shared and occasional use of the property simply did not rise to the level of exclusive possession indicative of a true owner for the full statutory period.” Id. at 759-60.

Here, HLC only uses Ms. Hunt’s property in summer. Ms. Hunt’s grandfather’s family and relatives also used the property every summer until he became ill in the early 1990s. Ms. Hunt and her family spent one weekend at the property in the summer of 1995. From 1993 to 1995, HLC never excluded Ms. Hunt’s or her grandfather’s uses. Thus, HLC may not prove the “exclusive” element prior to the summer of 1996.

However, after Ms. Hunt moved to Missouri in 1996, she did not visit the property until August 2007. Additionally, the camp facilities on Ms. Hunt’s property are located in a forested and relatively undeveloped area, and most property owners near the area use their land only in summer. It may be hard to find any one other than HLC who also uses Ms. Hunt’s property so as to defeat the “exclusive” element. Thus, the third element is undisputed if the ten years period starts from the summer of 1996, and it lasts for at least ten years.

According to the above discussion, HLC may not claim the adverse possession prior to the summer of 1996 because of lack of the second or third element. But, the second and third elements are fulfilled if the ten years period starts from the summer of 1996, and they concurrently last for at least ten years. However, the first and fourth elements are disputed at issue. The question is whether the first and fourth elements concurrently last for at least ten years since the summer of 1996. It seems that HLC may not prove these two elements because some strong arguments can be made. The detailed discussions are as follows.

C. Open and Notorious

HLC may not successfully prove the first element. “[T]he requirement of [‘]open and notorious[‘] is satisfied if the title holder has actual notice of the adverse use throughout the statutory period. This is consistent with the purpose of the requirement, which is to ensure that the user makes such use of the land that any reasonable person would assume he is the owner. For this reason the owner is held to constructive notice of the possession. When the owner has actual knowledge of the possession, the requirement's purpose has been satisfied.” Chaplin v. Sanders, 100 Wash. 2d 853, 862 (Wash. 1984) (en banc) (citations omitted). Further, “[i]n determining what acts are sufficiently open and notorious to manifest to others a claim to land, the character of the land must be considered. [‘]The necessary use and occupancy need only be of the character that a true owner would assert in view of its nature and location.[‘]” Id. at 863 (quoting Krona v. Brett, 72 Wash. 2d 535 (Wash. 1967), overruled by Chaplin on other grounds).

Thus, to fulfill the first element HLC has to prove either (1) Ms. Hunt’s or her grandfather’s actual notice of HLC’s use or (2) HLC’s acts which sufficiently enable HLC to manifest a claim of Ms. Hunt’s property to others while the nature and location of the property should be concerned. See Doyle v. Hicks, 78 Wash. App. 538, 545-546 (Wash. Ct. App. 1995) (“[n]otice is provided by the nature of the possession, given the type of property at issue, not whether the owner has put himself in a position from which any occupancy would not be noticed.”).

In Chaplin, the previous owner of the disputed property once conducted a survey, finding that the possessor had used the disputed property by making a park and a road to the park, but the latter owners did not know that. See Id., 100 Wash. 2d at 855-56. The Supreme Court held: “[W]hen the true title owner knows of the possessor's adverse use throughout the duration of the statutory period, the element of open and notorious is satisfied.” Id. at 855.

Here, it is unclear whether Ms. Hunt or her grandfather actually knew HLC’s use before 1996. The only information of HLC’s use is a February 1997 letter from HLC to Ms. Hunt, and the letter asked Ms. Hunt to allow HLC to continue using her property. Ms. Hunt received the letter, but had no time to reply. Thus, HLC may assert that Ms. Hunt was actually noticed of its possession of her property because of that letter.

But, whether a letter of asking for permission can constitute Ms. Hunt’s actual notice of HLC’s should be arguable because the letter would mean no continuity of HLC’s use. It is possible that if someone sends a letter to ask for permission to do something but gets no reply, he or she will stop doing something. Thus, the actual notice of Ms. Hunt remains disputed.

However, in Chaplin, the Supreme Court further provided an alternative holding for the “open and notorious” element not only because the possessor used the disputed property as its own in various ways, such as guest parking, garbage disposal, gardening and picnicking, but also because the owner’s other areas surrounding the disputed property remained undeveloped as the disputed property was used to be. Id. at 856-57, 863-64. In other words, the acts that fulfill the open and notorious element seem to be the acts by which HLC can distinguish the disputed property from its previous situation.

Here, since 1993 HLC has used Ms. Hunt’s property for campouts by providing tents and fire sites for children to stay and cook. HLC may assert its possession is open and notorious because the use of Ms. Hunt’s property is for children to do campouts and the children and their parents know HLC’s use.

But Ms. Hunt’s grandfather also used the property as a campsite. Even though HLC has maintained the campsites, the fire area, the outhouse and the dock, it is still hard to distinguish HLC’s construction from the true owner’s construction. Thus, HLC may fail to manifest a claim of Ms. Hunt’s property to other people.

As a result, relying on the present facts, HLC may not easily prove the “open and notorious” element. If so, then HLC is not entitled to Ms. Hunt’s property on the ground of adverse possession. Otherwise, the open and notorious element may be undisputed if the ten years period starts from 1996 after Ms. Hunt left, and it lasts for at least ten years.

D. Hostile

HLC may not prove its possession is hostile. The hostile element “requires only that the [possessor] 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. Under this analysis, permission to occupy the land, given by the true title owner to the claimant or his predecessors in interest, will still operate to negate the element of hostility.“ Chaplin, 100 Wash. 2d at 861-62.

Here, in February 1997, HLC sent a letter to request the allowance of continuing using Ms. Hunt’s property, but HLC got no permission from Ms. Hunt. So the determination of the “hostile” element should focus on how HLC treats Ms. Hunt’s property as its own as against the world. See Id.

In Chaplin, the possessor used a deep drainage ditch as a specific construction to identify the boundary of the disputed property. See Id., 100 Wash. 2d at 855. The Supreme Court held the possession was hostile. See Id. Similarly, in the cases where Division Three held the possession was hostile, the possessors used perimeters or fences to identify the boundary. See Stokes v. Kummer, 85 Wash. App. 682, 685 (Wash. Ct. App. 1997); Roy v. Cunningham, 46 Wash. App. 409, 411 (Wash. Ct. App. 1986); Wells v. Miller, 42 Wash. App. 94, 99 (Wash. Ct. App. 1985). In other words, The Supreme Court and Division Three require the possessor to create some construction to show that he or she uses the disputed property as his or her own as against the world.

Here, during the summer of 1997 HLC posted a “No Trespassing” sign on the dock. The sign seems to play a function like a fence. So HLC may claim that it uses the sign to treat Ms. Hunt’s property as its own as against the world.

But the whole area of Ms. Hunt’s property is two acres. It is arguable whether a “No Trespassing” sign can cover the whole geographic scope of Ms. Hunt’s property. Additionally, the “No Trespassing” sign may mean “Do not play in the lake!” to warn the children in the campouts.

In fact, it is highly possible to interpret the “No Trespassing” sign as a measure to warn the children but not as a measure to treat Ms. Hunt’s property as its own as against the world. In August 2007, Ms. Hunt and her family visited her property again. As soon as Ms. Hunt found the children were using her property, she went to HLC’s camp headquarters to complain about HLC’s use. Although Ms. Hunt and her family did spend that night at her property, they did spend the next night there after the children left. But, HLC did not ask them to leave. So if the “No Trespassing” sign means “It is HLC’s property, and do not come in without permission!” and if HLC does treat Ms. Hunt’s property as its own as against the world, it should ask and force Ms. Hunt and her family to leave or at least call police to do so. Lastly, although HLC’s director told Ms. Hunt that he thought Ms. Hunt’s property belonged to HLC, his statement was meaningless because the subject intent of the possessor is irrelevant to the “hostile” element. See Chaplin, 100 Wash. 2d at 861.

As a result, HLC may hardly use the “No Trespassing” sign to prove the “hostile” element. If so, HLC may not claim the title of Ms. Hunt’s property on the ground of adverse possession. Otherwise, if “No Trespassing” sign is considered as a fence to fulfill the hostile element, then HLC may claim the title, along with other elements, because it started to use the sign in 1997 and the use has last for ten years.

V. CONCLUSION

To claim title to Ms. Hunt’s property under adverse possession, HLC must prove that its possession has been (1) open and notorious, (2) actual and uninterrupted, (3) exclusive, and (4) hostile for at least ten years. According to the present facts, HLC may hardly prove at least the first and fourth elements. First, HLC’s maintenance of the campsites, the fire area, the outhouse, and the dock on Ms. Hunt’s property cannot constitute “open and notorious.” Secondly, the “No Trespassing” sign cannot prove the hostile element. As a result, HLC may not claim title to Ms. Hunt’s property.