Response Letter On Claim to Doctors and Nurses Who Care
Thank you for contacting me regarding your concern about if your neighbors, Doctors and Nurses Who Care (DNWC), can successfully make a claim to your Lake Chelan property through adverse possession.
Because my opinion is based on my understanding of the following facts, please contact me if I have left out or misstated a fact. In 2004, your grandfather, Edwardo Montoya, passed away and left you a two-acre section of waterfront property on Lake Chelan. This property has belonged to your grandfather since 1963. In the summers, your family would travel to Lake Chelan to use the property for camping, fishing, and campouts. In 2004, you went to the property one last time before moving to California in 2005. During your time away, you made sure to pay the taxes and assessments on the land. You recently returned to the property in August of 2017 to find that DNWC was utilizing the property for campouts during the summer. After speaking with Director Liu, it became clear that DNWC was under the understanding that the land belonged to its organization; however, DNWC did not prevent you from staying the night on the property the next evening.
It was later revealed that DNWC purchased the five-acre property adjacent to your land in 2001. Since 2002, DNWC has used its property as a summer camp for children with disabilities for eight weeks over the summer. In the process of using its land, DNCW also uses your two-acres to host campouts where children at the camp sleep-out on your property for about 4 nights a week. DNWC has been using your property as part of its summer camp for approximately 15 years. In February 2006, DNWC wrote a letter to you asking whether it could continue to use the property for its summer campouts. Due to your busy schedule, you were unable to respond. Sometime during that summer, DNWC posted keep out signs on the dock on your property. Additionally, in order to run the campouts, DNWC provides upkeep for your property by maintaining the dock, the campsites, the fire pits, and the outhouse.
In order for DNWC to establish a right to title of your two-acre Lake Chelan land through adverse possession it needs to prove four things. First, DNWC must prove that there was actual and uninterrupted possession of the land. To do this, DNWC must prove that it actually utilized the land and that it utilized the land in the same way that any property owner on Lake Chelan would use the property. Because DNWC can show that it maintained the docks, outhouses, firepits, and campsites, it should not have an issue showing actual possession. Additionally, DNWC must have only used the property in a way consistent with how the actual owner would
use it. Since this is traditionally a summer location, DNWC’s use of the property only in the summer satisfies this requirement.
Second, DNWC must prove the possession was exclusive for a period of 10 years in order to fulfill the statutory period required for adverse possession in Washington. In order to establish exclusivity, DNWC must have utilized the property in the way consistent with how a typical owner of similar land would utilize it. This requirement does not prohibit the shared use of land by tenants or guests. Since DNWC did not allow others to utilize the land, besides its summer campers who are legally analogous to tenants, DNWC has a solid case to establish exclusivity. Additionally, since you were unable to visit the land during the period between 2004 and 2017, DNWC can show that it fulfilled the 10-year statutory requirement for adverse possession.
Third, DNWC must prove that the possession was open and notorious. Open and notorious requires that you had actual notice of the adverse use throughout the last 10-years or that DNWC utilized the land in such a way that any reasonable person or neighbor would have thought DNWC owned the property. Here, DNWC can show that you had notice of its use of the land because DNWC reached out to you through its letter in 2006. Additionally, DNWC can establish that any reasonable person or neighbor would have thought DNWC owned the land because it utilized the property to host its public summer campouts and it had placed no trespassing signs on the property.
Finally, DNWC must establish that the possession was hostile. In order for the possession to be hostile, it needs to be without permission. Even if DNWC utilized the land under the permission of your grandfather, this permission terminated when your grandfather passed away. Operating under an assumption of your implied permission, a court is likely to believe that the implied permission was terminated in 2006 when the letter DNWC wrote you went without a response. DNWC, upon not hearing back, did take the steps necessary to use the property as a true owner and prevent others for utilizing the land by placing the no trespassing signs which helps establish that DNWC used the land as its own and in a hostile manner.
After a careful review of the facts, I have concluded that DNWC has a strong case for adverse possession and would be able to claim title to your land. However, I do believe you have some additional options to ensure the property does stay with your family for years to come. While I know this information might be unexpected and possibly upsetting, there are some important options I want you to consider.
One option is to speak with DNWC about arranging an agreement that is satisfactory to both parties. This could potentially be done informally through a simple conversation with the goal to reach a mutual understanding. DNWC’s Director, Mr. Liu, does seem to be under the impression that DNWC owns the land it camps on and speaking to him informally about the situation could present a solution that requires no further steps. An unlikely risk to this option is that it could potentially exasperate the issue and lead to potentially expensive litigation.
A second option could be mediation. Mediation involves an impartial third-party who assists parties in reaching a conclusion that is amicable for both parties. Since DNWC only uses your land primarily for its campouts, DNWC might easily acknowledge an agreement that leaves you with the primary title to the land but allows DNWC access during the summer months. A risk associated with this option could be that you might need to agree to allow DNWC to use your land for longer periods in the summer in order to retain title to the land.
Another option is to go to arbitration. This option takes the issue out of your hands and allows for a solution to be reached by an impartial arbiter after both sides present their case. The risk associated with this option, however, is that it is more costly and DNWC has a strong case for adverse possession. It is likely that through arbitration, you would lose your title to the Lake Chelan property.
While these options might seem unpleasant at first, it is important to remember your goals and that you are supportive of DNWC utilizing the land for eight weeks every summer in order to host its camps that serve youth experiencing disabilities in your community. I think it would be best for you to look over this information and weigh your options keeping in mind your grandfather and your desire for your nieces and nephews to have access to the land in the future.
Based on your options above, I strongly recommend retaining counsel to assist in any negotiations with DNWC in order to eliminate any undue stress and assist if contract terms are agreed upon. If interested, I recommend you contact my office to schedule an appointment to talk in person about your potential options. I look forward to meeting you, Mr. Garcia, and doing what I can to assist you in this matter.