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Samuel A Rodabough

Samuel Rodabough’s Answers

17 total

  • Must I grant an easement and do I have other options?

    My neighbor and I both own new homes by the same builder. My neighbor's driveway was widened by the builder for easier turning/use and this extension is on my land. My neighbor wants an easement, however I'm not certain I wish to grant it. My lot ...

    Samuel’s Answer

    I agree with Mr. Koler. The term “license” is generic in nature, but there may be other, more specific names, for the particular document that you envision, including a “permissive use agreement,” among others. From your perspective, a license may be a good option here because it is not an interest in land, and is merely a privilege that is revocable at will by you, the licensor. Moreover, licenses are personal to the licensee, and not subject to assignment (i.e., the license would not automatically pass to your neighbor’s successor in interest if he or she were to sell their home.). For these same reasons, however, from your neighbor’s perspective, a license may not be a good option because it doesn’t provide much certainty and might complicate his or her ability to sell down the road.

    My only hesitation regarding a license is that if a licensee invests substantial amounts of money or labor in reliance on a license, the licensor could be estopped from revoking the license, and the license could become the equivalent of an affirmative easement. Here, there might be a question whether a pre-existing driveway constitutes a substantial improvement for purposes of a subsequently drafted license. Your attorney would need to take this into account in drafting any license. Finally, it is possible that either you, or your neighbor, and/or both of you, may have claims against the builder, including a possible breach of warranty and/or contract under any applicable statutory warranty deed, purchase and sale agreement, etc. You would need to contact an attorney regarding the specifics of your case.

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  • Neighbor put up fence denying us use of some asphalt that we and previuos owner use.

    Live on a piece of land locked property and have a small easement to our driveway.The owner of the property next to us put up a fence taking away some of the asphalt that we and the previous owners use to park in our driveway. It also land locked ...

    Samuel’s Answer

    Based upon your question, it appears that you currently have what is referred to as an "express easement" (i.e., there is an access easement that is recorded on title that burdens your neighbor’s property for the benefit of your property). Your rights in this situation may initially depend upon the terms of the express easement itself. A particularly common problem with access easements is that they fail to adequately describe the area burdened by easement. You will need to determine if the express easement provides a precise location and width, preferably in the form of a legal description. If the location of the express easement is adequately described, then it is possible, based upon the limited facts that you have provided, that you may have exceeded the scope of your express easement. This conditional conclusion is premised upon the assumption that when you state that the neighbor obtained a survey, and that some of the asphalt was on his property, that you mean that some of the asphalt was located outside of the area burdened by the easement. However, there are legal doctrines that may apply that might allow you to continue to use the existing pavement, including the doctrine of prescriptive rights, among others.

    In Washington State, for example, an individual may obtain an easement by prescription in much the same way that an adverse possessor obtains title to adjoining property. In particular, an easement by prescription can be established over the property of another if the use of the property has been 1) actual over a uniform route, 2) open and notorious, 3) hostile, 4) continuous, and 5) exclusive for a period of 10 years. As a result of the doctrine of "tacking," this 10-year period can include both your use and that of your predecessor in interest. Also, some 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 these elements is very fact specific and will depend upon your particular circumstances. For these reasons, I suggest that you speak to an attorney regarding this matter. He or she will want to know more regarding how long the asphalt has been there, your use of that asphalt, and whether permission was obtained from the neighbor to lay the asphalt, among other potentially critical facts. Moreover, in addition to the doctrines of prescriptive rights and/or adverse possession, the attorney may be able to determine if other legal doctrines might apply that could also be the basis for allowing you to continue to use the asphalt. Finally, the attorney could advise you regarding the practical and legal consequences of your actions moving forward, even if you elect not to pursue the matter in court.

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  • Do i have to move my fence because of a property line dispute?

    my back fence is along the property of a church, i have lived here since 1997. last summer the church wanted to build a shed behind our fence, so they asked to remove my fence, build a retaining wall on my property and put the fence back. we decid...

    Samuel’s Answer

    In Washington State, 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 area 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. Also, some 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 these elements is very fact specific and will depend upon your particular circumstances. In fact, many appellate decisions regarding adverse possession may have seemingly similar facts, but reach different conclusions. For these reasons, I too suggest that you speak to an attorney regarding this matter. He or she will want to know how long the fence has been in the same location, whether permission was obtained from the church for the original installation of the fence, among other potentially critical facts. Moreover, in addition to adverse possession, the attorney may be able to determine if other legal doctrines might apply that could also be the basis for adjusting the boundary line, including the doctrines of estoppel in pais, parol agreement, and recognition and acquiescence, among others.

    The law of adverse possession has been largely unchanged in Washington for decades. However, as correctly alluded to by Mr. Alexander, the Washington State Legislature recently enacted ESHB 1026 (codified in RCW 7.28.083), which affords the judge in an adverse possession case the discretion to make an award of attorneys fees to the prevailing party. Such fees were not previously recoverable in most cases. Also, in those cases where the claimant is successful, the new statute also affords the judge the discretion to determine if the claimant should reimburse the defendant for back taxes or assessments levied on the disputed property during the period of adverse possession. This new law will apply to all cases for adverse possession filed on or after July 1, 2012. Accordingly, as a result of this new statute, there may be certain advantages and disadvantages related to the timing of the filing of a potential case that you may also want to discuss with any counsel that you may retain.

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  • Regarding boundary tree ownership, how is the trunk of a tree defined legally?

    This question pertains to Washington State. We have an old boundary tree that was obviously planted on our property but whose trunk has grown close to the property line. We had the tree surveyed to establish how far from the property line the tr...

    Samuel’s Answer

    The question may not be capable of a definitive answer under existing Washington jurisprudence. Remarkably, despite how commonplace this situation likely is, the law is not well developed in this area. In particular, this factual scenario appears to involve the intersection of two different legal principles.

    First, as indicated by others in this post, it is generally recognized that a property owner may, in most circumstances, cut encroaching branches and roots (only up to the property line) from trees originating from the adjoining owner’s property. In other words, your neighbor could likely trim the branches and roots of the tree, and there would likely be no legal recourse.

    Second, 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, with damages calculated accordingly.” In other words, the fact that your tree was originally planted on your property may not be determinative of whether you own it in its entirety under Washington law.

    Critically, the Happy Bunch court did not define “tree.” However, in light of the first principle above, the Court was likely referring to the trunk of the tree, because 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. Interestingly for your purposes, the damages in that case were based upon the “Trunk Formula Method,” which arborists typically use to value trees, with the diameter of the tree being measured at diameter breast height (DBH), which is usually several feet above ground level, with the purpose of measuring above any taper or flair to the tree.

    The bottom line is that you should tread carefully. As indicated by others, you could be liable for treble damages, and even attorneys fees or other costs, if the tree is considered “common property” and it was removed without your neighbor’s consent. See RCW 64.12.030; RCW 4.24.630. However, even if the tree is common property, and you elected to remove it, and your neighbor decided to pursue the matter, a court might only award damages in proportion to the percentage of the tree on your neighbor’s property. Based upon your description, it sounds like little to none of the tree would be on the neighbor’s property, depending upon whether the trunk is measured at DBH or at the root taper. Also, if you do decide to remove the tree, you would need to do so without creating other damage to your neighbor’s property. In this case, stump removal would likely be a bad idea. Finally, it is also possible that if your neighbor’s conduct kills your real estate transaction, you might have claims 1) to establish ownership of the tree, and/or 2) for tortious interference with the transaction.

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  • A neighbor came onto my property, cut down and removed 4 80ft trees. Is this criminal tresspass?

    This is not a property line issue. The trees were on the north and south side of the property.

    Samuel’s Answer

    The matter could be prosecuted criminally, although the particular charge would be up to the prosecuting attorney that pursues the matter. However, prosecuting attorneys, who often have large caseloads, may decline to pursue criminal charges for lack of evidence, or if they believe an adequate civil remedy exists, among other reasons.

    With respect to a civil prosecution, you may have a claim for timber trespass under
    RCW 64.12.030, if you can prove that the neighbor removed the trees without lawful authority. Under such circumstances, the statute allows for the recovery treble damages (i.e, triple the damages incurred). If the neighbor's removal of the trees was merely casual or involuntary, only single damages are awarded. See RCW 64.12.040.

    Alternatively, if you can prove that the neighbor's tree removal was intentional and unreasonable, you may have a claim for waste or injury to land under RCW 4.24.630, which not only allows for the recovery treble damages, but also allow for the recovery of attorneys fees and investigative costs.

    In pursuing similar claims for clients in the past, opposing attorneys have asserted that if your claim can be pursued under timber trespass (RCW 64.12.040), you cannot recover under waste or injury to land (RCW 4.24.630), which is preferable because of the potential recovery of attorneys fees.

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  • Can property remain legally landlocked in Washington State?

    I am considering purchasing property in Seattle that was made landlocked by the construction of the I-5 freeway, which runs through what used to be the front (streetside) half of the property. There are no easements in place with neighboring lots ...

    Samuel’s Answer

    As with any property with title or other defects, thorough due diligence should be undertaken prior to proceeding with any purchase. The question provides few specifics regarding the property itself, including existing improvements (if any), legal parcel or lot status, zoning, encumbrances on title (including recorded covenants, easements, access limitations, etc.), prior uses, and prior permitting efforts, among other critical facts. You should consult with a licensed attorney regarding (1) the specifics of this property and adjoining properties, (2) how best to protect yourself in any contemplated purchase, and (3) what steps, if any, could be taken to potentially obtain legal access.

    Additionally, few specifics are provided regarding historical condemnation at the time of planning and construction of I-5. For example, although the government may not have condemned the entire fee interest in the property, it may have compensated the owner for a limited interest in the property, which could include the loss or impairment of access. Indeed, it is difficult to imagine that the owner of the property at the time of the planning and construction of I-5, would have sat idly by as his or her access was effectively extinguished. Regardless, from a purely practical standpoint, the goal of receiving assurance that government will now provide “just compensation” for a loss of access that presumably occurred decades ago, is doubtful. Instead, it is likely to be much more productive to inquire whether lawful access can be obtained under current circumstances.

    Regarding easements by necessity, such easements are typically created where (1) a landowner conveys part of his land, (2) retains part, usually an adjoining parcel, and (3) after severance of the parcels, it is “necessary” to pass over one of them to reach a public street or road from the other. However, such easements typically will not arise if the original, common owner, is the government. Based upon the limited facts provided, an easement by prescription may not apply.

    Finally, as indicated by those that have already responded to the question, in the State of Washington there is a limited right of private condemnation. In other words, although the authority to condemn property (or interests in property) owned by others is typically afforded only to the government, in the State of Washington, a similar, but much more limited right can extend to private parties. Specifically, the Washington State Constitution allows for private parties to condemn the property of others for certain purposes, which could include an easement for access. That constitutional provision, however, is implemented via chapter 8.24 RCW and has been further circumscribed by case law. Because private condemnation is NOT available in all circumstances, you would need to consult with a licensed attorney regarding the potential applicability of this limited right to your situation. I, too, share the concern that the prior owner did something with respect to his or her access rights that would prevent the use of private condemnation. Private condemnation is typically considered a very extreme remedy, and usually reserved as a last resort. As an attorney that practices land use law from a property rights perspective, I was very surprised when I first learned that this limited right exists in the State of Washington, inasmuch as it allows one private property owner to take the private property of another.

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  • Is property owned by a Public Utilitiy District subject to the adverse possession laws or is it exempt?

    The property is a small parcel lot located in the Sunland Estates development in Grant County. The lot is zoned residential. A small strip of the PUD parcel adjoing an adjacent parcel has been used by the adjacent property owner for over 10 year...

    Samuel’s Answer

    It may be possible for adverse possession to occur under these circumstances. However, you would need to consult with a licensed attorney regarding the specifics of any potential case. Although the general rule is that adverse possession may not be obtained against the state, Washington courts have indicated that it may be possible to obtain title to lands owned by cities, counties, and other governmental entities below the state level via adverse possession, if the land is held in a “proprietary capacity,” as opposed to a governmental capacity (i.e., government operating more like a business, such as a private utility, and less like traditional government).

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