All Forum Posts by: Davido Davido

In Washington State all county's would require a "boundary line adjustment".  Since the neighboring property owner is willing to work with you, a boundary line adjustment approved by the county board should be cheaper and easier than filing a quiet title or adverse possession claim, which adjusts the boundary line by court order.  In my county a boundary line adjustment typically takes four to six months.  Surveying the intended new property line is highly recommended, but here it is not required, especially if the intent of both parties is clear and you or someone you know is comfortable writing the new legal description for each property.  Best wishes.  

@Rick H.  @Stanci March   Always appreciate your input Rick.

In my limited experience, your cautionary warning is probably not even strong enough.  It is not even sufficient to be correct under statutory law and supported by case law.  In doing just a half dozen of these properties I've discovered that cases which involve taking possession of real property where the possessor has no claim under color of title, are so infrequently litigated that both law enforcement officers and Judges tend to rely more on their personal sense of propriety than on the letter of the law.    When a law enforcement officer is presented with a person on or in a property where the person occupying it has no claim to the property under color of title, typically the law enforcement officer is likely to summarily order that person to leave the property and will threaten arrest under trespass laws if the person returns.  And though I have yet to litigate the issue in Washington Courts, I have seen that Judges, like most people and most BP commenters, initially take the position that there is something inherently improper about possessing real property that you have no title to.

So I agree completely that it is necessary to know the law, to have a clear understanding of cases previously decided (and to have the ability and willingness to argue the legal validity of your claim).  Unfortunately, even that may not be enough.  Adverse Possession is so contrary to the average Judge's and Officer's  life experience, that even being justified under the law, does not ensure an Adverse Possessor's interest. Thanks again.

Hello @Stanci March, Here are thoughts on how it is possible to take possession of an "Abandoned Property" without violating state laws on Trespass or breaking and entering. First in many states there can be no trespass if the owner of real property has abandoned that property.

Revised Code of Washington - RCW 9A.52.090 Criminal trespass—Defenses. In any prosecution (for trespass) under RCW and , it is a defense that:

(1) A building involved in an offense under RCW was abandoned; or

(2) The premises were at the time open to members of the public and the actor complied with all lawful conditions imposed on access to or remaining in the premises; or

(3) The actor reasonably believed that the owner of the premises, or other person empowered to license access thereto, would have licensed him or her to enter or remain:

Second,  abandonment can be implied.  The position I usually take is that from the many facts I can prove, any reasonable person would conclude that the previous owner has implicitly abandoned the property.  What else can a reasonable person conclude when the owner of record can not be located for a number of years, has made no payments on mortgage, taxes, or liens, is not available at last known phone #,  email or mailing addresses.  Has not been in touch with neighbors, or known friends, family and acquaintances, etc., and has done nothing to maintain or improve a property.

As a more practical matter, implicitly abandoned properties are invariably highly neglected and the object of previous abuse by squatters.  A couple years into an implicit abandonment virtually every property has already been opened and is wasting.  I've yet to have the issue of breaking in to enter.  However,even if an apparently abandoned property is not already open when I become involved with it, I am very confident that in every instance I can make a solid case in court that it was reasonable for me to believe the actual owner of an apparently abandoned property would have allowed me "to enter or remain" as provided for in section (3) of the law quoted above.  The reason is, that I'm preserving the property both physically and legally for the owner. I can document both the waste and the legal jeopardy of the property before I became involved.  I make no claim of ownership, but rather claim a lien against the property for taxes that I have paid, and the reasonable, necessary and normal costs of maintenance to prevent waste and of managing the property to collect rents -which are the owners (minus costs and management fee).

A blog post of my Adverse Possession ideas and the general consensus among BP'ers that they are wrong headed can be found at this link -

https://www.biggerpockets.com/forums/70/topics/214...

 Be aware that often the county benefits financially from the revenue that is generated from the excess proceeds of a property tax foreclosure sale.  County's do not want investors interupting the flow of those funds.  Abandoned properties are typically the ones that benefit the county general fund financially because owners of abandoned properties never claim the overage generated at the property tax foreclosure sale.   See www.pushedtoshove.com for a fascinating look at one Washington man's struggle with State and County authorities over who could claim excess proceeds from property tax foreclosure.

Feel likewise free to message me.  Though at this point, I like the public forum for its broader point of view.  Best Wishes

@Rick H.   Rick your posts are informative and invariably appreciated by me.  Thank you.

 I do have a different take on the idea that Adverse Possession should be considered only a tool of last resort.   While recognizing that AP is difficult, time consuming, and usually risky, the laws of Adverse Possession also afford investors tremendous privacy and tax advantages.  By using the tool of AP it is possible to benefit from the control multiple properties which are legally unconnected to any entities I own.  It is also possible to direct and benefit from the funds produced by those properties without many of the tax liabilities and reporting requirements necessary with properties I own.   So while Adverse Possession may be a tool of last resort for those who want to gain clear title,  there is no principled reason to think that people are naive to use AP primarily for the other advantages it provides.

Thanks Sue.  Without any disrespect to you, I'll be hoping for a male judge.   As a general rule, males are somewhat more oriented to abstract reasoning.   For, Brion Russell and others wondering about Adverse Possession, what we are discussing in renting out a property you do not own, is that continuous occupancy of the property is typically an element that the adverse possessor must prove.  My point is that generally the adverse possession laws will recognizes a landlord as being in possession and credit him or her with continuous occupancy if he or she can show that the property was under their continuous control as a rental. 

@Roy Oliphant,  

Hello Roy.  Certainly the idea of renting out an abandoned property is not for everyone.  And if an owner should return to his property with objections to it being rented -then that property was clearly not an abandoned property to you, me, the owner, and likely not as a matter of law either.   My discussion in this post is applicable only to property that is abandoned as a matter of law -meaning the owner has either explicitly or implicitly relinquished his rights to the property.

I also agree with you and the many other BP posters who recognize that typically it is only under exigent or emergency circumstances that it is possible to “Break and enter” lawfully.   However, my comment above referring to conduct that was not “unlawfully breaking and entering"  was only in regard to taking possession of an abandoned property.  I said,

“…that the investor is in fact in possession of the property and took possession without unlawfully breaking and entering”.

While, I recognize that breaking and entering is criminal conduct, I also recognize that it is possible to possess abandoned property without violating the law.

You are correct that in many States forcible entry is indeed defined to include more than physical breaking.   Here, under the Revised Code of Washington (RCW) breaking, or forcible entry, also includes fraud, intimidation, and stealth.

RCW 59.12.010

Forcible entry defined.

Every person is guilty of a forcible entry who either—(1) By breaking open windows, doors or other parts of a house, or by fraud, intimidation or stealth, or by any kind of violence or circumstance of terror, enters upon or into any real property; or—(2) Who, after entering peaceably upon real property, turns out by force, threats or menacing conduct the party in actual possession.

@Account Closed,   Sue your challenge is likely to be unmet because “a clear statute” dealing with adverse possession is indeed hard to find -especially for those who do not habitually read law.   And though my own comments on this matter do lack clarity, I did try to make it clear that to “pretend to be the owner” as you have referred to it, is not necessary to rent out an abandoned property.   It is possible and legal to honestly say that the owner is absent and you are renting the property until he or she returns.

Though Adverse Possession law is not clear to the average person, nor to the average investor, the very website that you linked in a comment above, does provide an answer to your own challenges (except for your unnecessary claim that renting an abandoned property means pretending to own it).

Sue you have linked to - Under the “Elements” paragraph of that link it is clear our laws recognize that “nonpermissive use by the adverse claimant that is actual, open and notorious, exclusive, hostile, and continuous for the statutory period” can “ripen into legal title”.   And though that description of adverse possession does not specifically refer to renting the property to another, the paragraph describing “Continuous” clarifies that, “Continuity means regular, uninterrupted occupancy of the land. Mere occasional or sporadic use is not enough. Continuity is sometimes explained as the daily control of the land by the adverse claimant for the length of the statutory period.” (Emphasis added).

Therefore, from the authority that you provided, a reasonable person can conclude that nonpermissive control of land by renting it to another for the statutory period of adverse possession can ripen into legal title.  Hope that helps.

@Account Closed  - "there is no "proper" way to pretend you own something you don't own,"  That is what we agree on. 

What we appear to disagree on is whether a non owner can acquire a legally cognizable right to occupy or to possess an "abandoned" property, and whether the law would then permit the mere occupier to sublet his right to occupy the previously abandoned property.  It would be helpful if you would provide legal authority for the view that this is not possible to develop a legally protected occupancy interest in a property one doesnot own. 

Further, it is not necessary in Washington (or in any other state I'm aware of) to actually occupy a property yourself  in order to win an adverse possession case.  The current possessor is entitled to rely on when his or her predecessor in interest, commenced possession of the property.  Under Washington law possession descends to the current possessor from the time his or her non owner predecessor commenced possession.  Although in a case like the one discussed in this thread,  a non owner renting an abandoned property,  it is the one doing the renting who has and who maintains the primary occupancy/possessory interest.

RCW 7.28.070 Adverse possession under claim and color of title—Payment of taxes. ... All persons holding under such possession, by purchase, devise or descent, before said seven years shall have expired, and who shall continue such possession and continue to pay the taxes as aforesaid, so as to complete the possession and payment of taxes for the term aforesaid, shall be entitled to the benefit of this section.

 it is absolutely

@Account Closed,  With all due respect, I believe you are mistaken.  It is difficult for most people to understand the legal definition of "abandoned".   In my state (Washington), "Abandoned" incorporates the principle that the owner(s) of title have intentionally relinquished their rights to the property.  In such a case a mere occupant can often establish legally cognizable rights to continue their occupancy.  Further once a property is abandoned, anyone can assume occupancy.  Further, the right to occupancy can be sublet -or rented to another.  And finally, it is certainly possible to sublet one's right to occupy a property without claiming to own the property or to be an agent for the owner. Just because the average person would not want to rent a property from someone who does not own it, does not mean that no one would be willing to knowingly do so.

I concede however, that it is likely to be rather difficult to enforce in court a contract one makes with a tenant on a property that one has no title to.   As stated in my original post, renting an "abandoned" property is risky.   I merely maintain that properly done, it is not illegal.

@Brion Russell,   It is an extremely risky move to rent out someone else's property.   Most poster's here at BP are of the belief that it is universerally unlawful and/or enethical to collect rents on a property that you do not own.  However, if the lawful owner has indeed abandoned the property, or if an investor can demonstrate to a court that "any reasonable person" would conclude the property is abandoned and that the investor is in fact in possession of the property and took possession without unlawfully breaking and entering, then it is indeed possible to rent a property that the investor has no actual title to, nor color of title to.  I have rented such properties before and intend to do it again.  You may find this old post on the subject of interest. 

https://www.biggerpockets.com/forums/70/topics/214551-seeking-to-use-abandoned-tax-delinquent-properties-for-privacy-and-tax-avoidance