Posted over 4 years ago

There’s no Trespass @ Abandoned Property

Respected real estate Attorney, Annie Fitzsimmons, declared that my real estate activity constitutes trespass, theft and fraud. (See the post; Abandoned Real Estate Realities: There's Two Sides to Every Story) at:
https://www.biggerpockets.com/member-blogs/12388-abandoned-property-adventure-on-wildside/blog_posts

I, Davido, disagree. Here is my response.

_________________________________________________

Annie T. Fitzsimmons Davido Davido

Washington State Bar Association Thurston County Real Estate Investor

Real Property Probate and Trust Section [email protected]

PO Box 65578

University Place, WA 98464

Comment on Your Opinion Letter of July 12, 2016 Regarding ‘Investor’ Who Takes Possession of and Then Rents Abandoned Real Estate

To: Attorney Annie T. Fitzsimmons,

It appears that in July of 2016 you provided an opinion letter answering a question about the legal propriety of a person (investor) taking possession of abandoned real estate and subsequently renting the property to another person (tenant). The question came to you from Ms. Naomi Pinger, via the Washington Realtors Legal Hotline https://www.warealtor.org/membership-welcome/welcome-to-the-legal-hotline Ms. Pinger was then a Real Estate Agent/Broker with Better Properties of Olympia WA. https://www.betterpropertiesolympia.com/ . License # 114997

Accurate as to other situations, Not accurate here.

A copy of Ms. Pinger’s question and your opinion letter (as posted online) is included. My name is Davido, I am a Thurston County resident who is engaged in the conduct described (possessing and renting abandoned real estate). I write here to inform you that your response was clearly erroneous on the facts related in Ms. Pinger’s question and as to my own conduct. I will reserve opinion as to the accuracy of your advice as to other facts to which you may claim to have intended your counsel to apply. Your response appears to give no consideration to the legal effect of owner abandonment. The question that Ms. Pinger put to you specified the properties were “abandoned” (as opposed to merely being vacant). And the question further specified that there was no breaking and entering.

Let me be clear. Your response to Ms. Naomi Pinger might be accurate as to other instances or even to the majority of instances in which a non-owner enters a vacant home without the owner’s permission and subsequently rents that property to another person. The advice you gave is certainly erroneous when applied to my conduct involving only those rare [1] instances in which the owner of record has abandoned his/her real estate, expressly or implicitly, as the term "abandoned" is used in Washington State law. Please note that the statutes, definitions and legal principles relevant to abandoned real estate and adverse possession can be counter-intuitive to persons, even attorneys, who are not familiar with these concepts. Since you appear to be unfamiliar with Washington Law regarding abandoned real estate, it is not surprising that your advisory opinion to Ms. Pinger included the following incorrect statements.

No. The "investor's" actions are not legal…. (H)e is trespassing. … He has no right to profit from his unauthorized use of another's property (trespass). … The only person with authority to sell the right of possession is the owner of the property, Thus, he is stealing from the property owner.

There can be no Trespass when an owner abandons their property.

There can be no trespass when real property is abandoned. This is a legal principle recognized by most courts. WA courts define “Abandoned” as does Black’s Law Dictionary,

“Abandoned property in a legal sense is that to which owner has relinquished all right, title, claim, and possession, with intention of not reclaiming it or resuming its ownership, possession or enjoyment. Jackson v. Steinberg, 186 Or. 129, 200 P.2d 376, 377, 378.

There must be concurrence of act and intent, that is, the act of leaving the premises or property vacant, so that it may be appropriated by the next comer, and the intention of not returning. Relinquishment of all title, possession, or claim; a virtual intentional throwing away of property. Ex parte Szczygiel, Sup., 51 N.Y.S.2d 699, 702 (Sup Ct 1944).” Black’s Law Dictionary

A person who abandons real property, whether their abandonment is express or implicit, cannot later claim they were trespassed against. It is true that an owner’s intentional abandonment of real property does nothing to change their title right of ownership (unless abandoned formally via quit claim or other deed). Intentional abandonment does, however, eliminate the owner’s ability to later claim trespass. The fact that real property can be abandoned in Washington is specifically recognized in our criminal trespass statute. RCW 9A.52.090 “… it is a defense that:(1) A building involved in an offense under RCW 9A.52.070 (trespass in a structure) was abandoned;”

Washington’s new anti-squatter statute (July 2017) under RCW 9A.52, also specifically does not apply to abandoned homes.

RCW 9A.52.105 (1) …upon the receipt of a declaration signed under penalty of perjury … 2) … a peace officer… has the authority and discretion to make an arrest or exclude anyone …for knowingly entering or remaining unlawfully in a building considered residential real property ... [provided] (4) The declaration must include the following elements: (f) That the premises were not abandoned at the time the unauthorized person or persons entered; https://app.leg.wa.gov/RCW/default.aspx?cite=9A.52.105 at Section 1, subsection (4)(f)

Abandonment of real property follows the same principles that govern abandonment of personal property. If a person puts an item out on the street with a sign that says "Free" then that item has been expressly abandoned. If the item has no sign but is put out on the street along with the household garbage, then the owner has implicitly abandoned the item. In either case, when a passer by comes along and takes the item, our courts will not recognize a claim by the abandoning party that their property had been stolen.

Therefore, to the extent that the question Ms. Pinger asked specified the “investor” was possessing “abandoned houses”, your response that he was trespassing is clearly erroneous as a matter of law. My conduct is a specific exception in the WA trespass statute. RCW 9A.52.090(1) https://app.leg.wa.gov/RCW/default.aspx?cite=9A.52.090

Feel free to offer your professional opinion as to the difficulty a person might have in establishing facts sufficient to prove abandonment of real estate as a matter of law, or to suggest the burden of proof that you believe is required to establish abandonment. It is of interest to me, that during the 2011 revision of Washington’s Adverse Possession Statute, the Senate rejected the language proposed by the house which would have required the elements of adverse possession to be proven by Clear, Convincing, and Cogent evidence. (RCW 7.28.083) https://app.leg.wa.gov/RCW/default.aspx?cite=7.28.083

Entry Enables Occupancy, Results in Protected Tenancy

Since it appears that your advice misapprehended the factual situation (your response might be applicable to vacant homes but not to abandoned homes), there should be no need to address the further questions of whether any law forbids a person who lawfully enters an abandoned property from remaining there until his occupancy ripens into a legally protected tenancy? I note however, that many investors in WA and around the country (including me) have first-hand experience with unauthorized occupants being granted the protection of the law, -at least temporarily. I humbly suggest that judicial protection of the mere right of possession is likely to be greater for those who occupy real estate that has been intentionally abandoned, than for these instances of individuals who claim an unauthorized tenancy in properties that are merely vacant.

http://www.city-data.com/forum/washington/2485666-squatter-nightmare.html

https://q13fox.com/2016/09/21/pierce-co-neighbors-fed-up-with-squatters-sheriff-says-hands-tied/

https://www.biggerpockets.com/forums/67/topics/64944-the-occupants-from-hell-

https://www.biggerpockets.com/forums/56/topics/250301-squatter-nightmare

https://www.biggerpockets.com/forums/52/topics/110018-update-on-my-squatter?page=2

http://www.landlordstation.com/blog/understanding-squatters-rights-in-washington/

https://www.landlordguidance.com/eviction-notice-forms/washington-eviction/

Mere Possession is a Protected Right

Courts routinely enforce contracts based the cognizable right of mere possession. In common law, possession is itself a property right. Possession acquired without consent is still a property right which the law protects. There is a rebuttable presumption that the possessor of property also has the right of possession. Merely possessing real property gives rise to a right of possession which is enforceable against everyone -except those with a better right to possession. Evidence may be offered to establish who has the legal right of possession, which may include evidence of (Title) ownership, or evidence of a superior right of possession without ownership (Adverse Possession). The passage of time can also bring to an end the owner's right to recover exclusive possession of a property, even without losing the ownership of it, as when an adverse easement for use is granted by a court.

Rental Agreement Fraud Requires Deception or False Statements

Nor should it be necessary to address the question of whether a law exists which would prohibit an investor who obtains tenancy in an abandoned structure, from subletting his tenancy to another person.

I will however provide a sample of my current rental agreement so that you may consider what I actually promise my tenants, before repeating a statement like this;

“…(I)t is the Hotline lawyer's opinion that the investor would have to be prosecuted on the basis of consumer protection, if nothing else. (Investor’s)Tenant is investing (time, rent, deposits) in a rental property based on a fraudulent lease. Tenant's safety is at risk and so is tenant's financial investment in occupying the property.”

It should be clear from reading my rental agreements that I make no claims of ownership and do not hide my mere possessory interest from those I rent abandoned properties to. There is no fraud.

Court Won't Consider Trespass

In regard to your personal belief as to how a court might view my conduct in an action to Quiet title;

“It is difficult to believe that a court would award unlawful actions with quiet title based on an adverse possession theory.”

Your view is certainly one shared by most people. However, this belief is not shared by the Supreme Court of the State of Washington, nor by any division of the WA appellate courts. Our Courts attempt to apply the legitimate purposes of Adverse Possession.

“The doctrine of adverse possession was formulated at law for the purpose of, among others, assuring maximum utilization of land, encouraging the rejection of stale claims and, most importantly, quieting titles.” Chaplin v. Sanders, 100 Wn.2d 853, 860 (1984)

Chaplin v. Sanders remains the lead case in WA on Adverse Possession. It rewrote the requirement for establishing the element of “hostility” and overturned dozens of previous decisions. In Chaplin v. Sanders the WA Supreme Court unanimously concluded; (Stafford, J., did not participate)

“Because the doctrine was formulated at law and not at equity, it was originally intended to protect both those who knowingly appropriated the land of others and those who honestly entered and held possession in full belief that the land was their own. …. Thus, when the original purpose of the adverse possession doctrine is considered, it becomes apparent that the claimant's motive in possessing the land is irrelevant and no inquiry should be made into his guilt or innocence. Accord, Springer v. Durette, 217 Or. 196, 342 P.2d 132 (1959); Agers v. Reynolds, 306 S.W.2d 506 (Mo. 1957); Fulton v. Rapp, 98 N.E.2d 430 (Ohio Ct. App. 1950); see also Stoebuck, The Law of Adverse Possession in Washington, 35 Wash. L. Rev. 53, 76-80 (1960).” Chaplin v. Sanders, 100 Wn.2d 853, 861 (1984) Emphasis Added.

“The hostility/claim of right” element of adverse possession requires only that a claimant treat the land as his own throughout the statutory period. The nature of his possession will be determined solely on the basis of the manner in which he treats the property. His subjective belief regarding his true interest in the land, and his intent to dispossess or not dispossess another is irrelevant to this determination.” Chaplin v. Sanders, 100 Wn.2d 853, 861-862 (1984) Emphasis Added.

In a adjudicating a claim of adverse possession, the case law of Washington establishes that a court is unlikely to even consider whether I trespassed, or not.

Summary for your Comment

Here are key points relevant to my conduct. If you disagree with these points, then why not simply cite the law that prohibits such conduct? If you agree with these statements, then isn’t it appropriate to provide a corrected statement to Ms. Naomi Pinger, and to all who read your opinion online? Your professional opinion has been posted in a public forum where it is held out as authority for the false idea that my conduct is criminal (trespass, theft, & fraud).

-In those instances where an owner of real estate has intentionally abandoned all of his/her interest in real property, there appears to be no law which prohibits anyone from entering that property.
-There appears to be no law which would prohibit a person who enters and remains in an intentionally abandoned home from developing a legally cognizable occupancy or possessory interest in the property.
-There appears to be no law which would prohibit a person who gains a cognizable occupancy or possessory interest in abandoned real property from subletting their mere possessory interest.

“An error doesn't become a mistake, until you refuse to correct it.” Orlando A. Battista, Chemist, Author

Your opinion has been posted by Naomi on a public forum at this website: https://www.biggerpockets.com/forums/51/topics/743817-unusual-tax-question-is-this-money-for-nothing-is-it-tax-free?page=3

And I have replied to it there and on my own blog at:

https://www.biggerpockets.com/member-blogs/12388/86745-there-s-no-trespass-at-abandoned-property

The online posting of the original question to you, from Ms. Naomi Pinger, and your answer, are copied here in.

Respectfully,

Davido, a single man with only one legal name, living in Thurston County WA

CC Naomi Pinger

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So Ends My Reply to the Attorney. What is Your Opinion?

Did you form and opinion of your own? Does a person violate trespass laws if he/she enters or remains in an Abandoned home? I'd like to hear your thoughts.

Best Wishes, Davido

Can this be Legal? The Blog of Abandoned Real Estate and Adverse Possession
https://www.biggerpockets.com/member-blogs/12388-abandoned-property-adventure-on-wildside

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[1] Abandoned real estate is rare. In my county (Thurston) approximately one out every 40,000 tax parcels are intentionally abandoned by the owner each year. Most of those are small vacant land parcels of little value. Approximately one out of every 160,000 parcels -one per year) is a valuable abandoned lot with utilities available, but generally also with debts and associated problems exceeding the property value. Only about one out every 500,000 tax parcels is a property with a useable home (occurring once every 3 years). Only once, in my experience, have I found a code compliant home that was intentionally abandoned by its owner. In that case, the unpaid mortgages and liens against the property were 3 times greater than the assessed tax value. Valuable improved abandoned real estate is rare.