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Robert Walter Zierman

Robert Zierman’s Answers

11 total

  • How long does it usually take and how much would be average cost to obtain a prescriptive easement from a neighbor

    I purchased property in 1998, and have had ability to cross neighbors property until recently, acknowledgement has been long standing as far back as the two previous owners of my property for this usage. Use of neighbors road allows me to axcess...

    Robert’s Answer

    Provided you actually crossed the neighbors property during a full 10 year period in such a way that ought to have been observable to your neighbor, per RCW 4.16.020, you likely will have gained use of the land by prescriptive easement. To what degree of use is a separate question.

    Fortunately, it appears that your previous owners would testify to the crossing's previous use and thus the time line of recognition is effectively extended beyond the period in which you were using it.

    You also indicate that there is no other way in which to access the rear of your property where there is a shop. This may also provide a viable means of arguing for an easement in that you may have a need to the crossing by necessity.

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  • Can we be forced to give an easement on an illegal driveway through our property

    Can we be forced to give our neighbor easement access through our property when we don't even have legal access to our property because it is considered a "hazardous landslide area" His property borders the county road and he is taking us to cour...

    Robert’s Answer

    I agree with Shawn. Get competent counsel right away. Your inquiry could be used as an 'issue spotter' on the bar exam.

    In addition to prescriptive easement, there may be easement by necessity, zoning, inverse condemnation, and bona fide purchaser rights issues at play here.

    Moreover, what happens if the earth does move? It is almost a certainty that any injury caused would be disclaimed by your homeowner's insurance. Now, you might be willing to bear that risk for yourself, but what if your neighbor seeks damages against you. Or how about this one? Post- slide, your neighbor claims you have the sole duty of reestablishing access. They don't call it a servient or burdened estate for nothing!

    Good luck. I hope it helps.

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  • What RCW do I need to retain my property for adverse possession?I have maintained for 10 years with no boundry dispute

    I bought this property 10 years ago, with existing fence on 2 sides of the property.When the porperty behind my home sold to the city of Vancouver park and Rec. they said the barb wire fence that I replaced with a wooden fence was on their proper...

    Robert’s Answer

    What is your primary concern? Is it that you would have to pay for the cost of moving the fence? Or, is it that the city will be able to own land that you thought was yours?

    If the former, just take the loss on the fence, get it moved, and get on with your life. If the latter ... you know the story: "I fought the law, but the law won."

    The first contributor is accurate in indicating that one cannot adversely possess against the government. The second contributor is accurate that between you and your 'predecessor in interest' (which in the majority of situations is simply the person that sold you your real property), you may have 'perfected title' to the land prior to purchase of the adjoining real property by the City of Vancouver.

    Here's the rub. You have the burden of having that 'perfected title' legally recognized by a Court of law. And though It would be nice to think that cities would be better stewards of their money than to involve themselves in a matter like this, the fact remains their pockets are going to be deeper than yours.

    Unless you can find an attorney who is friendly with 'the city' and is willing to help you negotiate some sort of deal, you are likely going to have one heck of an uphill battle if you decide to pursue this.

    That said, if you hire an attorney, who upon analyzing your case determines that you will - not can - win [a position that few attorneys would be willing to take], you might consider waiting to file your claim until after July 1, 2012. That is when the new adverse possession bill (ESHB 1026) will take effect.

    This law changes adverse possession in two ways. 1. It allows the Court discretion to shift reasonable costs and fees to the prevailing party. 2. When it is the adverse possessor who prevails, the Court is allowed discretion to determine if the adverse possessor has to pay taxes on the 'acquired land' to the original title holder, the county tax assessor, or both.

    So based on the limited but informative information that you provide, I recommend that you don't pursue this matter further, but if you do, make sure that you have the best attorney, the best surveyor, and perhaps even the best appraiser in the City of Vancouver all on your side.

    Good Luck, I hope it helps!

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  • I just bought a property whose cedar hedge has long encroachesd another's property. Can I file for adverse possession?

    I bought a property in 2010 in Seattle surrounded by woodlands on all three sides. Part of the property apparently encroaches into the park land, and is surrounded by a cedar hedge that has been there since the original owner planted it in 1999. ...

    Robert’s Answer

    Provided that the land upon which your hedge encroaches is unrefutably government land, the best that you can expect is to negotiate a license with the agency that has jurisdiction over it.

    Unfortunately, licences are revocable, so if it really means that much to you, you should seek an attorney that not only knows the law but also has the network in place to work out a satisfactory deal for you.

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  • Is it legal for a property owner to place a speed bump on an easement in front of his own property without consulting neighbors?

    I feel the bump is necessary to slow down traffic in front of my house. It is purely a safety issue, and I have experienced some problems with neighbors and their guests traveling the easement at unsafe rates of speed.

    Robert’s Answer

    The answer to this question hinges on who owns the easement. If the easement is owned by you and your neighbors, you should be seeking their input and ideally financial contribution regarding the matter. The knotty legal fiction that has to be worked out is that each owner "owns" each square-inch of the easement to the extent of his or her percentage of ownership.

    If the easement is owned by you solely, using your own best judgement surrounding facts not revealed, you might just go ahead and do it. Here, consider that it would be hard and expensive for your neighbors to argue against public safety in this matter.

    And of course, if you don't have any interest in the easement other than that a Right-of-Way runs upon it next to your land, you should raise the issue with the person(s) that do own the easement. Hope that helps!

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  • Adverse possession/prescriptive easement?

    We are looking at purchasing a parcel that is bisected by a private road. The smaller part that is bisected road, say part B, has an encroachment where a 1/2 of an old/unoccupied home, part of the corresponding lawn and a driveway are located. T...

    Robert’s Answer

    There are two overarching issues that you need to be looking at here. (A) Who has ownership of the private road and by what means? (B) Is Parcel B clouded by adverse possession or prescriptive easement? I will take them up in turn.

    A: You indicate that this is "a parcel that is bisected by a private road." The analytical process of deducing whether or not it is the property of your current owner is as follows. First, have a title report pulled to see if someone other than those up your prospective seller’s chain of title lays any type of claim to that road.

    Notwithstanding if there is ownership or use found up the chain of title, absent the unlikely event of severing of that title by adverse possession, it is possible that it is owned outright by someone else OR jointly by the seller with someone else. That is something that you should know going into this transaction and its ramifications. [It sounds like you already did this though, right?]

    OK, then identify if there are any properties for which the roadway is the only means of access. If this is the case, then an easement by necessity has most likely been established.

    Also, on the off chance that you identify that this is not a private road, but rather a public road, you will want to consult RCW 36.87.090.

    B: As to whether or not adverse possession or prescriptive use was established with respect to Parcel B, you implicitly provided four facts. Parcel B: (1) is bounded by the bisecting road; (2) has an encroaching driveway; (3) has a lawn; and (4) has an old unoccupied home. However, you indicate that the later three facts might occupy about 1/4 of the space [of Parcel B.]

    Assuming that the lawn was maintained, on paper it sounds as if the personal representative has a good case for adverse possession. However, before any attorney can really give you definitive advice this matter, he or she would need to actually take a look at the land first.

    There are a couple of other points that you should consider. First, Washington is one of the few states that still has what is called the Deadman's Statute. With limited exceptions, what this means is that evidence offered in a case brought against the interest of someone that has passed away will be excluded. Adding more complexity to these types of matters, consider that the one claiming adverse possession must prove their case.

    What this means is that while you don't need to prove a thing, if the adverse possessor did start to make significant argumentative inroads, you might not be able to refute them because of the Deadman's Statute - a very unfortunate place to find yourself.

    However, the fact that the house is up for sale is particularly interesting. Why? Because right at the top of the seller's Form 17 are issues related to the Marketability of Title and Boundary Issues. As a result, with both your prospective seller AND the personal representative, you appear to have some pretty formidable leverage.

    You might want to talk to an attorney about whether you should put your prospective seller, the personal representative, or perhaps both on notice of the potential boundary dispute. If you were already in the house the analysis with the personal representative would go something along the line of this ... (A) Once put on notice of the issue, he or she will either have to negotiate with you or risk not finding a buyer willing to step into a boundary dispute mess. (B) They will soon be gone so you can take a firmer stance than with someone who you are going to have as your neighbor for the indefinite future.

    Notably, if you were my client in this particular situation, I almost certainly would advise that though tough, your stance should also remain civil and graceful least you get caught in the backfire of the forces of both A and B.

    But, since you are not in the house, there are Statute of Warranty considerations that you should also be considering vis-a-vis your prospective seller. Good Luck!

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  • Do I need an attorney?

    I can prove my landlord committed perjury. He refused to admit that he ever paid the w/s/g bill, claiming that he was not responsible for my utilities being shut off. His $ amt. was based on a wrong date of occupancy. Someone else lived there at t...

    Robert’s Answer

    It sounds like you have been wrongfully evicted from your apartment. If so, you are rightfully heated about this matter. The problem is that the stakes are generally not of sufficient significance to the tenant; the tenant doesn't have sufficient assets to take this matter to Court; the cost of taking the matter to Court outweighs any potential gain by the tenant; or some combination of all three. As a result, unscrupulous landlords can and do trample on tenants' rights.

    In order to gain sufficient leverage, informally find out if there are other tenants that have had similarly poor experiences. Notably, this inquiry will put other tenants on notice of the landlord's behavior and that will likely get back to the landlord. So, note that you must do this in a manner that does not slander your landlord. However, note further though that the "truth" is an affirmative defense to slander. Bottom line; be circumspect in your inquiry and comments with others in your former apartment building.

    Then, write out your comments into a polite, firm, and comprehensive letter. At that point it will be critical to have a level-headed friend or attorney review your letter. If you choose the former, after making any modifications, mail the letter certified mail with return receipt.

    The better course though, will be to take your letter to an attorney in a MS Word format and ask for him or her to "punch it up" and put it on the attorney's letter head. The cost of doing so will hopefully, but not necessarily, yield satisfaction to your demands.

    Yet, It would be best to also prepare yourself to have your attorney follow through with a Summons and Complaint if your former landlord chooses to ignore your letter. Notably, I just answered another Avvo question which explains that process. You may want to review that answer prior to speaking to an attorney in Spokane. Good Luck!

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  • Enter your question here. e.g., Do I need a real estate attorney?Does an attorney need to file an amendment to a summons?

    I was served an amendment to a summons. The original summons was issued to John Does, it has been amended to add my name and additional complaints. The attorney has not filed the amendment since I was served. Do I need to respond to the summons si...

    Robert’s Answer

    Washington State allows Perfection of a lawsuit to occur by completing both (a) Filing and (b) Service of Process within 90 days of each other regardless of which event occurs first. In both events both the Summons and Complaint must accompany each other.

    It sounds like you were initially named as one of the "John Does." As a result, you could have claimed that you were not properly served. In this Amended Summons (and Complaint), you are named and so this option is removed. Take the Summons seriously! The Summons will indicate a time line (usually 20 days excluding the date of Service) and manner in which to provide an Answer.

    If you do not Answer on time, the Plaintiff will almost certainly Perfect by Filing the Summons and Complaint AND File a Motion for Default Judgment. As a result, you will be liable to the Plaintiff for whatever the Plaintiff claimed! Now, this won't necessarily be the end of the matter, but you would then have to Vacate the Default Judgment. That is a time and economic hassel that would be much better avoided.

    As to whether the attorney's client is trying to intimidate you via his or her attorney, this is not necessarily the case. Filing before Service of Process is actually the more significant signal. This is because the cost of filing in King County Superior Court is currently $230. As a result, there is a fair likelihood that the Plaintiff yet hopes to resolve this issue with you outside the Court system. My advice would be to hire an attorney to Answer the Complaint and to find out the Plaintiff's stance by taking a friendly but firm stand as well. Hope that helps!

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  • Who is liable for damage caused by a falling tree?

    We have a tree that is leaning toward our neighbor's property. It is currently not over the property line, but would fall in that direction. The neighbor has recently chosen to park a car under the estimated fall-line. We have warned them a lon...

    Robert’s Answer

    If the branches of your tree extended over the boundary line beyond your property onto that of your neighbors, your neighbors would have the right to cut back the tree to the trunk. But your situation is different in two significant ways. First, you indicate that "[the tree] is not over the property line." This suggests that its branches are unreachable by your neighbor without a license to enter your land. Moreover, this suggests that your neighbor wants to take on the responsibility of sorting out any issues with your tree. However, the fact remains that even if the branches did extend over the boundary line, the neighbor would have only the right to remove them, and not a duty to do so.

    It is true that you can call up your home insurance carrier and confirm that you have coverage for this type of incident. However, at best this will mean that you have put them on notice of the issue and no misfortunate event ever occurs. No misfortunate event other than a rise in your premiums at the time of renewal. On the other extreme, the tree falls and damages both property and person. In such an event, your carrier will likely tender a defense and pay damage for you up to your policy limits and then cancel your policy.

    So, yes call the insurance company as a "band-aid," but then call an arborist to take care of your situation. It is quite likely that with a "haircut," the root system will be relieved of excess stress and as such the tree will not go down. Moreover, by initiating the conversation with your arborist via a letter or email that expresses your concern, if the tree still does fall down, you will be in a better position to evidentiarily demonstrate that you did what you could to eliminate a potentially negligent situation to both a court and your insurance company.

    As a final note, make sure that your neighbors grants you a license to go upon their land for the purpose of taking down the tree if the arborist must do so to complete his job. Good Luck.

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  • What avenues are open to us as recent home buyers who have discovered significant undisclosed water damage to the home?

    We purchased our home in August 2010. Our inspector noted water damage prior to the closing. The seller agreed to fix them. We have had significant leaks recently. The roofing/construction company we've had come over tells us that the "fixes" ...

    Robert’s Answer

    Your question indicates that there was "significant undisclosed water damage to the home." This begs the question, what did the Form 17 indicate. Go back to that document. How did the seller represent the structural integrity of the roof and basement? 4(A) asks: "Has the roof leaked within the last five years?" 4(B) asks: "Has the basement flooded or leaked?" In answer to these (and to other questions) the seller was able to answer "[ ] Yes [ ] No [ ] Don't Know." Initial analysis MAY suggest that you will not likely get anywhere with the seller if "[ ] Yes" was checked.

    In the body of your question, you indicate that your "inspector noted water damage prior to the closing." Because of this it is likely that the inspector is not liable. He or she drew your attention to the issue and as such you were in a position to investigate further. Moreover, the language in the inspector's contract will almost certainly disclaim this sort of liability. Notwithstanding, on an outside chance you might yet want to take a look at this contract. But it is PROBABLY going to be a very expensive fools errand if you want an attorney to do this for you.

    Instead, when discovering an issue of this nature prior to closing there are generally three courses one normally may take. First, if it is not deemed to be that big of a deal and may disrupt your negotiations with the seller, you could have simply waived your right to raise the issue with the seller. Second, you could have raised the issue in an attempt to negotiate a discounted price of the overall property and just live with the issue until you want to take care of it on your own. Third, you ask the seller to fix the issue prior to sale. This appears to be what you did and the seller agreed to make these changes.

    Assuming that this was the case, now go and look at the deed. If it is a Statutory Warranty Deed, you MAY be able to train your guns on the seller. Whether they choose in turn to drag their vendor into the mix, which they will most likely do, is not your concern (at least upfront).

    Now, to do this right, find a local lawyer that knows the ins and outs of the substantive law. Ideally, between your lawyer, your real estate agent, the seller’s agent, and the seller, you can resolve this matter amicably. I wish you the best of luck.

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