Surprising things happen when owners are ignorant of land-use laws

Question: We are selling our property in Frisco and just found out that the neighbor’s deck ”encroaches” on our property.  Is this a big problem?

Answer: That’s a good question.   Second-home getaways often are used only during specific times of the year. For example, a riverfront cabin may go months -- sometimes even years -- without any occupants while other popular escapes in popular locations are jammed-packed every weekend with city folks fleeing the craziness of downtown.

Even though a second home may be placed on your mental "back burner," make sure you stay current on all zoning, land-use and legal guidelines. If you wait too long to build or improve, the building environment may have changed dramatically.

According to Tom Kelly, from Inman News, for example, in Shelton v. Strickland, a landowner (Shelton) filed a lawsuit against his neighbor (Strickland) to have Strickland's shed removed on one of the popular San Juan Islands in Washington state. The shed encroached onto Shelton's property. The Stricklands countered by claiming adverse possession on the land. The trial court granted Strickland's adverse possession claim, and the appeals court affirmed the claim. According to attorneys familiar with land-use cases, a person claiming adverse possession will prevail if he or she can show that the usage was open and notorious, actual and uninterrupted, exclusive, hostile under a claim of right, and for a period of 10 years.

The court held that these elements had been met and granted Strickland the land that the shed was on as well as an easement to maintain the shed. Here's how it happened:

According to court documents, Mabel Hitching acquired title to the land -- now owned by Edward and Margaret Strickland -- from her parents in November 1933. The Hitching lot was improved with a single-family cabin and a shed. Cement work for the shed had a number "59" inscribed on it, indicated the cement work had been completed in 1959.

The shed was shown to encroach upon the Shelton parcel in a survey recorded in April 1975. Mabel used the structure, built by her companion, Arthur Hedman, as a potting shed and painting studio until her death in 1982. Through her will, Mabel granted Hedman a life estate in the premises and he continued to live there until his death in 1985.

The property was left to Jack Ridley, Mabel's nephew who recorded a conveyance from the estate to himself in 1986. In 1993, Ridley, a California resident who never used nor occupied the house, sold the property to the Stricklands.

The Stricklands used the shed as an office during construction of their new home. They made some repairs to the shed, but did not change its location. They continued to use the shed and were not aware of any evidence to suggest that anyone other than the previous owners of their property had ever used the encroaching structure.

Shelton purchased his property, overgrown and unimproved, from Peter and Jenny Wangoe in 1978. Even though Wangoe owned the property for more than seven years, he rarely visited and was not necessarily aware that the shed extended over the property line onto his land. The shed was visible from the street, court papers stated.

Shelton filed a complaint to quiet title to the property and moved for a summary judgment. The Stricklands countered with a summary judgment alleging adverse possession of the area encumbered by the structure.

According to Seattle attorney Scott Henderson, the court found that all of the elements -- the usage was open and notorious, actual and uninterrupted, exclusive, hostile under a claim of right, and for a period of 10 years -- were met for adverse possession.

"The case may have turned out differently if the shed was hidden or of a temporary nature," Henderson said. "The court also finds that since there was no evidence that the Stricklands or any previous owners had abandoned or allowed another to occupy the shed (which would normally stop the 10-year timeframe from continuing) that the second and third elements were met as well.

According to Henderson, the court made quick work of the fourth element (hostility) by focusing on the precedent that "subjective beliefs are not relevant."

"In other words, the fact that the Stricklands or their predecessors may not have known that they were encroaching does not endanger their claim so long as they held themselves in a manner consistent with ownership," Henderson said. "Building a permanent shed and using it seems to fit the court's bill."

The court devoted most of its opinion to the final element -- that an owner's use of the claimed land must be for 10 years. In this case, the Stricklands themselves owned the land for fewer than 10 years. The court held that state law (Washington) provides "tacking" of a previous owner's rights -- that a current owner may take the period of possession of such previous owner as their own so long as there is a connection "or privity" between each owner.

In the end, the shed stayed.

Holding on to a family getaway property? Make sure you know what you actually have.