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Samuel A Rodabough

Samuel Rodabough’s Answers

17 total

  • Can a neighbor build a fence on their property that intentionally blocks my water view?

    My house is situated across the street from another house that has an unobstructed view of Puget Sound in Washington State. While my view is blocked in part by his house, I still have a view of the water on both sides of their house. The fence t...

    Samuel’s Answer

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    As a general matter, property owners may use their property for any reasonable and lawful use, so long as the use does not (1) deprive adjoining property owners of any right of enjoyment of their property that is recognized and protected by law, or (2) constitute a nuisance.

    Applying these principles to your situation, with respect to the first principle, there is no recognized common law right to unobstructed or partial views in Washington. Likewise, most local development regulations also do not contain provisions that directly protect private views, as most policy makers consider this a civil matter that should not be the subject of government intervention. However, local regulations do frequently regulate the height of fences, which may provide an incidental benefit to protecting your views. You may want to check your local regulations to determine if your neighbor’s proposed fence would be compliant.

    Ultimately, the primary means of protecting views in Washington is through private servitudes, such as view covenants or easements. You may want to review a title report for your property and determine if there are any view covenants or easements recorded that benefit your property and burden your neighbor’s property by prohibiting certain obstructions of your view. In the absence of a recorded view covenant or easement, it is unlikely that your desire for an unobstructed or partial view is recognized and protected by law.

    However, with respect to the second principle above, it is possible that the anticipated construction of a fence by your neighbor may constitute a nuisance in these particular circumstances. In Washington, certain “spite structures” are considered a nuisance and may be enjoined. Specifically, RCW 7.40.030 states as follows:

    “An injunction may be granted to restrain the malicious erection, by any owner or lessee of land, of any structure intended to spite, injure or annoy an adjoining proprietor. And where any owner or lessee of land has maliciously erected such a structure with such intent, a mandatory injunction will lie to compel its abatement and removal.”

    Relevant jurisprudence indicates that in order for this statute to apply, a court must find that the structure (1) damages the adjoining landowner’s enjoyment of his property in some significant degree; (2) is designed as the result of malice or spitefulness primarily or solely to injure and annoy the adjoining landowner; and (3) serves no really useful or reasonable purpose. Baillargeon v. Press, 11 Wn. App. 59, 66 (1974). These elements are not met, however, if the structure enhances the value and enjoyment of the neighbor’s property, regardless of motives of the owner and the intent to annoy their neighbor.  Jones v. Williams, 56 Wash. 588, 594 (1910). Here, your neighbor would likely argue that their fence enhances the value and enjoyment of their property and serves a useful purpose, regardless of their motives.

    Ultimately, the application of this statute to your situation will depend upon your particular circumstances. Given the limited facts provided in your question, and the many nuances of this area of the law, it is not possible to fully answer your question here. You may want to schedule a consultation with an attorney to determine the scope of your rights.

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  • Can a city charge anything they want for building permits?

    I am dealing with a particular city that charges far more than any other city I have dealt with when it comes to permitting. How do cities set their permitting fees? Is there a cap? What can I do about it?

    Samuel’s Answer

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    In Washington, the amount that a local jurisdiction can charge for a building permit is expressly limited by statute. Specifically, under RCW 82.02.020, a local jurisdiction’s authority to impose a building permit fee is limited to “collecting reasonable fees from an applicant for a permit or other governmental approval to cover the cost to the city, town, county, or other municipal corporation of processing applications, inspecting and reviewing plans, or preparing detailed statements required by chapter 43.21C RCW, including reasonable fees that are consistent with RCW 43.21C.420(6), 43.21C.428, and beginning July 1, 2014, RCW 35.91.020.”

    First, as indicated above, building permit fees must be “reasonable.” Second, building permit fees cannot exceed the cost to the local jurisdiction of “processing…, inspecting and reviewing” the building permit applications. In other words, the statute is designed to ensure that the permitting process is not used by local jurisdictions as a tool for raising revenue for general purposes. Instead, the revenue derived from building permit fees should be limited to an amount that compensates the local jurisdiction for the costs incurred in processing, inspecting, and reviewing building permits, and nothing more. Once revenues from building permit fees exceed the cost to the local jurisdiction of processing, inspecting and reviewing building permit applications, the local jurisdiction is no longer imposing a lawful regulatory fee, but is instead imposing an unlawful tax.

    There may be administrative or judicial procedures that must be utilized to challenge a fee. These procedures often have exceptionally short statutes of limitation. However, where possible, these types of claims are most cost effective if litigated on a class action basis.

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  • Developer cut down trees on shared property line

    A developer recently purchased the property next door to mine. There are six trees that are on the property line. He wanted to cut them down but I did not. He did end up trimming them back significantly but dropped the matter. Then all of a su...

    Samuel’s Answer

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    First, ownership of the trees must be determined. A survey would reveal if the trunks of the trees are wholly located on either of your properties, or whether they are truly straddling the property line.

    Second, once ownership of the trees has been determined, basic principles of property law must be applied. If the six trees are located wholly on the developer's property, with limited exception, the developer would be permitted to remove them, and you would have no legal recourse.

    If the six trees are located wholly on your property, the developer would likely be entitled to cut any encroaching branches and roots (only up to the property line) from trees originating from your property, and there would typically be no legal recourse. However, the developer would not be entitled to remove the trees. Such removal constitutes timber trespass (see below), among other potential causes of action.

    If, as your question states, the six trees are physically located "on the property line," (i.e., straddling the property line) then the trees are likely considered common property, and cannot be removed without the consent of both property owners. In particular, one of the three intermediate appellate courts in Washington has held that “a tree, standing directly upon the line between adjoining owners, so that the line passes through it, is the common property of both parties, whether marked or not; and trespass will lie if one cuts and destroys it without the consent of the other.” See Happy Bunch, LLC v. Grandview North, LLC, 142 Wn. App. 81, 93 (2007). In its holding, the Court expressly rejected the argument that “absent a showing of an agreement to the contrary, a boundary line tree belongs entirely to the party on whose land the tree was originally planted.” In other words, the fact that the trees may have been originally planted by one of the property owners is not necessarily determinative of the owners' respective rights in the trees.

    Critically, the Happy Bunch court did not define “tree.” However, the Court was likely referring to the trunk of the tree because, as indicated above, cutting overhanging limbs and roots is generally recognized as lawful. Ultimately, the Court awarded damages to the plaintiffs, because the defendant did cut trees that were “common property” (i.e., straddling the property line). However, the damages were pro-rated based upon the percentage of the trunks on the plaintiff’s property prior to cutting.

    If the six trees are wholly located on your property, or are common property, you may have a claim against the developer for timber trespass under RCW 64.12.030, among other potential claims. To prove liability for timber trespass, you must show that the developer removed the trees without lawful authority. Under such circumstances, the statute allows for the recovery of treble damages (i.e, triple the damages incurred). If the developer's removal of the trees was merely casual or involuntary, only single damages are awarded. See RCW 64.12.040. As indicated above, for trees straddling the common property line, damages would likely be pro-rated based upon the percentage of the trunks on your property prior to cutting.

    Finally, although the developer may have removed the trees as retribution for your complaint to the City, it is doubtful that you have a claim at this time under the anti-SLAPP (strategic lawsuit against public participation) statute, RCW 4.24.500, et seq. Although complaining to government is a protected activity, the anti-SLAPP statute would likely only apply if the developer asserted a claim against you that was based upon your protected activity.

    Finally, take photographs of the damaged trees immediately, obtain a survey of the property line (if necessary to establish the location of the trees with respect to the property line), and consult an attorney regarding your legal rights. The attorney would likely assist in retaining an arborist to assess your damages, which are often significant in these types of cases.

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  • I started building a house, neighbor is claiming we're building on their property, claiming adverse possession.

    We built according to the property stakes placed by surveyors. I've been paying taxes on the "disputed land".They said they had a fence before we had purchased the property 9 years ago. Currently there isn't a fence or any sign of an old fence s...

    Samuel’s Answer

    In Washington, a property owner may obtain title to adjoining property via "adverse possession." In general, to prove adverse possession, a claimant must demonstrate that they possessed the disputed property in a manner that was: (1) exclusive; (2) open and notorious; (3) hostile; and (4) actual and uninterrupted for a period of 10 years. The 10-year period can be reduced to 7 years in some limited circumstances. To complicate matters, many of these elements may operate very different in practice than their terms imply. For example, the term "hostile" typically means nothing more than possession without the permission of the title owner.

    The application of the above elements is very fact specific and will depend upon your particular circumstances. Given the limited facts provided in your question, and the many nuances of this area of the law, it is not possible to fully answer your question here.

    For example, an attorney will want to know the historical condition of your property. Inasmuch as you are currently building your residence, was your property previously vacant? In general, there is a rebuttable presumption that the element of hostility is not established for property that is vacant and undeveloped. An attorney will also want to know the type of property involved, because this doctrine may apply differently on urban versus rural land. An attorney may also want to see historical photos of the property (especially those depicting the fence) and a title report. The title report might disclose if the disputed property is burdened by an easement for the benefit of the public, which may also prevent application of the doctrine of adverse possession. In summary, because of the degree of nuance involved, I suggest that you speak to an attorney regarding this matter as soon as possible.

    Additionally, based upon your description, it appears that your neighbors are asserting that their 10-year period of uninterrupted possession occurred prior to your purchase nine years ago. If your neighbor sued to quiet title to the disputed property under a theory of adverse possession, you may be able to argue that the claim is barred by the doctrine of “laches.” This doctrine applies where there has been a lapse of time and other circumstances causing prejudice to the adverse party. In other words, it may be inequitable for your neighbors to sit idly by for nine years without asserting a claim for adverse possession, only to do so once construction of your residence has already commenced.

    Because you are currently constructing your home, your neighbors may believe that they have considerable leverage against you to force some compromise or to stop your project altogether. As an attorney, my strategy would be to apply as much counter leverage as possible. If your neighbors did file a lawsuit, I might consider trying to convince the judge to require your neighbors to post a bond to protect you against significant financial losses in the event that you prevail. Such losses might include increased construction costs from any delay in construction, loss of financing, loss of use of your new residence, etc. Because this amount could be substantial, your neighbors might think twice about pursuing their claim.

    Finally, I would put your neighbor on warning that, if you prevailed against their claim for adverse possession, you may be entitled to recover your attorney’s fees, which could also be substantial. See RCW 7.28.083. Additionally, under this same statute, even if you did not prevail, your neighbors might still be required to reimburse you for all of the back taxes and assessments that you have paid on the disputed property over the years.

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  • Can I take "adverse possession" over property owned by my HOA?

    My home boarders a section of dedicated green-space that is owned by my HOA. 17 years ago, the developer planted a portion of this land in grass. I gave him permission to tie into my sprinkler system so the grass would not die in the summer mont...

    Samuel’s Answer

    I respectfully disagree with Ms. Comstock and Mr. Vancil. It appears doubtful that you could obtain title to this greenbelt via adverse possession. The Growth Management Act, chapter 36.70A RCW, contains a section that prohibits adverse possession of such greenbelts as follows:

    "The legislature recognizes that the preservation of urban greenbelts is an integral part of comprehensive growth management in Washington. The legislature further recognizes that certain greenbelts are subject to adverse possession action which, if carried out, threaten the comprehensive nature of this chapter. Therefore, a party shall not acquire by adverse possession property that is designated as a plat greenbelt or open space area or that is dedicated as open space to a public agency or to a bona fide homeowner's association."

    RCW 36.70A.165. Because this section was not enacted by the state legislature until 1997, it may not bar claims for adverse possession that accrued prior to 1997 (i.e., the 10 or 7 year statutory period was completed prior to 1997). However, based upon the information that you provided, your use of the greenbelt did not commence until approximately 1996, so the applicable statutory period did not run prior to 1997. There may be an argument that this statute would not prevent your claim for adverse possession inasmuch as your use of the greenbelt commenced prior to its enactment in 1997, but it would likely present a case of first impression for Washington courts. Regardless, based upon the limited facts provided, you may not meet the requisite elements of adverse possession for various reasons. For example, your original use of the greenbelt could be construed as permissive, i.e. the developer apparently consented to your watering of the greenbelt by tying into your sprinkler system.

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  • Can a person whose property is burdened by a non exclusive road easement eliminate it by claiming adverse possession?

    A non exclusive private road easement goes through a neighbor's property. It has not been paved or used since 1995. The neighbor argues that it has not been used and therefore they can declare through adverse possession that the non exclusive r...

    Samuel’s Answer

    It is doubtful that adverse possession applies under these circumstances. For purposes of this response, I will assume that the access easement is recorded on title. Based upon the other limited facts that you have provided, it appears that the access easement has never been opened (i.e., it has never been improved or otherwise used for its intended purpose to provide access). In Washington, the owner of the property burdened by an easement (also known as the “fee” owner) is legally entitled to make non-interfering, beneficial use of the property burdened by the easement. Because the access easement was never opened, the use of the access easement by the underlying fee owner did not interfere, and was not otherwise inconsistent, with the easement holder’s exercise of their easement rights. Under these circumstances, adverse possession presumably would not apply.

    Instead, I agree with Mr. Meyler that these limited facts lend themselves to an analysis of whether the access easement has been abandoned via nonuse. Washington courts have essentially created a heightened burdened of proof to demonstrate that an easement has been abandoned via nonuse. This is likely because many easements are granted for purposes of future development, with no real intent to use them in the short term. Courts are presumably wary of determining that every easement that remains unopened for 10 years has essentially been extinguished via adverse possession.

    In Heg v. Alldredge, 157 Wn.2d 154 (2006), for example, the Washington State Supreme Court concluded that mere lapse of time was not sufficient to effectuate abandonment of a recorded access easement. Instead, the court found that acts constituting abandonment must be unequivocal, decisive, and inconsistent with the continued use of the easement. In short, Washington courts are generally inclined to find that an access easement has not been abandoned through mere nonuse and lapse of time.

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  • Nieghbor is routing water onto my property

    My neighbor is digging ditches on his property directing his standing water onto my property when he is done it looks like it will flow right over my drive way. We both have standing water or winter ponds at the low points of our property, with mi...

    Samuel’s Answer

    Since 1896, the law regarding surface water in Washington State has been governed by the “common enemy doctrine.” In its original form, the common enemy doctrine allowed landowners to dispose of unwanted surface water in any desired manner, without liability for any resulting damage to adjoining property. In other words, surface water was viewed as a common enemy against which any property owner could defend himself.

    However, in order to avoid harsh results, the common enemy doctrine has been relaxed by our Washington State Supreme Court in recent decades. There are now several judicially created exceptions to the common enemy doctrine. First, a landowner cannot inhibit the flow of a natural watercourse or drainway. Second, a landowner may not artificially collect water and then channel it onto his neighbors’ land. Third, a landowner owner must exercise due care in improving his land to minimize unnecessary surface water impacts upon adjacent lands.

    Under the circumstances that you have described, it is quite possible that your neighbor is artificially collecting water and channeling it onto your property in a manner different that its natural flow. Likewise, your neighbor may also have failed to exercise due care with the manner in which he designed and dug the new ditches. Accordingly, you may have a claim for trespass, nuisance, waste, damage to land, or other similar causes of action under Washington law against your neighbor.

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  • We have a Private Road and Utility Easement ( 60 foot wide). Can porperty owner build fence inside this easement?

    easement is 60 ft wide... exisitng road is within this easement.. about 20 ft side... prop owner is building fence right up against the road within the easement... can with enforce that he must build the fence outside the easement?

    Samuel’s Answer

    I generally agree with Messrs. Koler and West. However, because these types of questions appear to arise often, it may be beneficial to take a step back and explain the nature of the specific property interests involved. When the nature of these property interests are fully understood, the legal doctrines related to them make a whole lot more sense.

    In particular, an “easement” is a limited right to use the property of another for a specific purpose. The owner of the underlying property that is burdened by the easement retains the “fee” interest (i.e., all other property interests not granted to the easement holder). Although easements can be created in a variety of ways, they are most frequently created by an express act, typically a deed.

    Naturally, when a dispute arises regarding the respective rights of the easement holder versus the fee owner, the starting point is the language of the deed/easement itself. Thus, if the 60-foot easement expressly prohibits the underlying fee owner from installing any fence whatsoever on the easement, the answer is obvious. No fence would be allowed.

    If the question cannot be resolved by looking at the language of the easement, then a court will typically look to the general purpose of the easement, and utilize the default rule that the fee owner is entitled to make non-interfering, beneficial use of the property, including the easement area. The flip side of this rule is that the underlying fee owner cannot take any actions that are inconsistent with the use of the easement area (e.g., block the road). These basic rules make sense because, after all, the easement holder has a mere limited right to use the property for a specific purpose, and the fee owner retained all other rights (not to mention the typical obligation to pay the property taxes).

    In this case, the question is whether the installation of a fence within the 60-foot easement, but outside of the existing 20-foot road, interferes with the use of the easement for access and utilities. Although it’s a debatable question, building the fence “right up against the road” may constitute interference with normal use or because of special site conditions, safety concerns, or other unique circumstances. Moreover, the issue of interference may be informed by the parties’ historical use of the easement. If a non-interfering fence is installed in the easement by the fee holder, it could potentially be moved at a future date if the need to widen/expand the road arises.

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  • How do I take action on a ejectment to remove deck encroachment

    there is a property owner trying Adverse Possession with a dock onto my property. I want to make an action for ejectment to remove dock. How does one do this?

    Samuel’s Answer

    An action for ejectment is typically commenced by filing a complaint with a claim for ejectment in the superior court where the real property is located. The named defendant is the wrongful possessor of plaintiff’s property, which is typically the adjoining property owner. In reality, however, most attorneys would file such a complaint with two closely related, but different claims, namely claims for “quiet title” and “ejectment.” The purpose of an action to quiet title is to obtain an order from the court declaring the status of title to real property. In contrast, the purpose of an action for ejectment is to allow a plaintiff who has a superior right to physical possession of the real property, to recover possession from someone wrongfully in possession.

    Admittedly, the distinction between these claims has become blurred, not only because both are statutorily authorized by RCW 7.28.010 (which is arcane and difficult to read), but because they have also been shaped by common law and case law. Mercifully, however, because the distinction between these claims has been blurred, in those cases where a plaintiff only brings one claim, and should have brought the other, many Washington courts have been willing to be flexible and consider the action as the underlying circumstances require. However, the problem is best avoided by asserting both claims.

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  • Does Adverse Possession transfer between new owners of property.

    My adjacent prop. owner has docks on my aquatic lease. Survey shows this (no dispute) He claims Adverse Possession (1 year) but because or prior owners use (many years). We have tried in writing to have this resolved with both owners.Does the tim...

    Samuel’s Answer

    In Washington, one of the required elements for establishing either adverse possession or a prescriptive easement, is continuous use of the disputed area for a certain period of years which, with limited exception, is typically 10 years. However, under the doctrine of "tacking," the 10-year period does not need to be continuous possession by the same person. Instead, a claimant can "tack" their period of possession onto the period of their predecessor in interest in order to make up continuous possession during the statutory period. Thus for example, if the immediate predecessor in interest used the disputed area for 9 years, and their successor in interest continued that use for 1 more year (without a significant interruption in between), the periods could typically be tacked together to meet the 10-year requirement.

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