Court of Appeals Division II
State of Washington
Opinion Information Sheet
| Docket Number: |
41128-8 |
| Title of Case: |
Karen Nickell, Appellant V. Southview Homeowners Association, Respondent |
| File Date: |
01/04/2012 |
SOURCE OF APPEAL
----------------
| Appeal from Pierce County Superior Court |
| Docket No: | 08-2-15199-4 |
| Judgment or order under review |
| Date filed: | 07/30/2010 |
| Judge signing: | Honorable Frank E Cuthbertson |
JUDGES
------
| Authored by | J. Robin Hunt |
| Concurring: | Marywave Van Deren |
| Jill M Johanson |
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s) |
| | George Scott Kelley |
| | Attorney at Law |
| | Po Box 1901 |
| | Tacoma, WA, 98401-1901 |
Counsel for Respondent(s) |
| | Annette T. Fitzsimmons |
| | Attorney at Law |
| | Po Box 65578 |
| | University Place, WA, 98464-1578 |
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
ROBERT NICKELL and KAREN NICKELL, No. 41128-8-II
husband and wife,
Appellant,
v.
SOUTHVIEW HOMEOWNERS ORDER PUBLISHING OPINION
ASSOCIATION, a Washington nonprofit
Corporation,
Respondents.
Appellant, Karen Nickell, has moved for publication of the above-referenced opinion filed
on January 4, 2012. Respondent, Southview Homeowners Association, filed a response in
support of publishing the opinion. The Court has determined that the opinion in this matter
satisfies the criteria for publication. It is now
ORDERED, that the opinion's final paragraph, reading:
A majority of the panel having determined that this opinion will not be printed
in the Washington Appellate Reports, but will be filed for public record pursuant to
RCW 2.06.040, it is so ordered.
is deleted. It is further
ORDERED, that this opinion will be published.
DATED this ______________ day of ____________________________, 2012.
Hunt, .P.J.
We concur:
VanDeren, J.
No. 41128-8-II
Johanson, J.
2
No. 41128-8-II
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II
ROBERT NICKELL and KAREN NICKELL, No. 41128-8-II
husband and wife,
Appellant,
v.
SOUTHVIEW HOMEOWNERS UNPUBLISHED OPINION
ASSOCIATION, a Washington nonprofit
Corporation,
Respondents.
Hunt, P.J. -- Robert and Karen Nickell appeal the superior court's grant of summary
judgment to the Southview Homeowners Association and its ruling that the Nickells' silence
induced reliance by others and estopped the Nickells' adverse possession of an 18-foot-wide strip
of land between their property and Southview's property. The Nickells argue that (1) by June
1995, they had acquired full title to the disputed strip by adverse possession; (2) the prescriptive
easement "vacant lands doctrine" does not apply because their use of the disputed strip was
permanent, not sporadic, and occurred on land undergoing suburban plat approval; (3) the
"greenbelt" statute,1 which prevents adverse possession of a designated greenbelt, does not apply
1 RCW 36.70A.165.
3
No. 41128-8-II
because the Nickells had title to the disputed strip by June 1995 and the legislature did not enact
the statute until 1997; and (4) the trial court improperly granted summary judgment based on
estoppel because estoppel requires an admission, statement, or act, none of which occurred; the
Nickells were merely silent, and without knowledge of a boundary dispute; and because
Southview had the same or superior knowledge of a boundary dispute and possibly "unclean
hands,"2 it had no right to rely on the Nickells' "delay"3 in seeking to quiet title to the strip. In the
alternative, the Nickells argue that, if equity controls and we impose a greenbelt easement on the
strip, title should vest in them and Southview should compensate them for the easement's impact
on their property value. We reverse and remand for further proceedings.
FACTS
I. Boundary Dispute
Robert4 and Karen Nickell purchased their property in late March or early April 1989,
moved onto the property immediately, and occupied it continuously. When they took possession,
various shrubbery and trees demarked what appeared to be the eastern boundary of their property:
Their groomed lawn met landscaped shrubbery, which abutted a thicket of blackberry bushes,
timber, and brush; this landscaped area had been in place, and apparently maintained by the
2 Br. of Appellant at 25 (internal quotation marks omitted).
3 Br. of Appellant at 27.
4 Robert Nickell is now deceased, but the appellant continues to include both names and to refer
to the Nickells in the plural "to avoid the potential for confusion." Br. of Appellant at 1. We
adopt this approach.
4
No. 41128-8-II
Nickells' predecessor, since at least 1985.5 The Nickells maintained this landscaping, which
included a row of bushes along what they believed to be their property's eastern boundary. When
these bushes died in the mid to late 1990s, the Nickells installed an underground sprinkling system
and replanted the same area with arborvitae hedges.
In 1993, Thomas and Carol Greetham applied for a preliminary plat to subdivide their land
adjacent to and east of the Nickells' property; their application included a land survey. In 1994,
Pierce County conducted a public hearing on the Greethams' application; Karen Nickell voiced
her concern about the proposed plot size and stripping of trees. The Hearing Examiner's report
described the site as located within a medium-intensity residential environment. The Hearing
Examiner approved the proposed preliminary plat and site plan, known as Southview, subject to
several conditions, including that "[t]he 25-foot buffer area along the west property line shall be
replanted in accordance with a landscape plan which must be approved." Clerk's Papers (CP) at
47.
In late 2004 or early 2005, developer Randy Chopp, who had purchased the Greethams'
property, entered the Nickells' land and informed them that (1) some of their landscaping was on
his property, but "not to worry" because the County had designated it as greenbelt as a condition
of plat approval; and (2) he planned to remove part of their lawn and plant vegetation. CP at 32.
The Nickells were "flabbergasted" and questioned Chopp but did not object. CP at 32. Chopp
removed a portion of the existing lawn on the landscaped area that he contended was his, and he
5 Washington State Department of Transportation (WSDOT) photographs from 1985 show this
landscaped demarcation.
5
No. 41128-8-II
installed a septic system6 for one of the intended lots. Afterwards, the Nickells continued to
6 The Nickells dispute Southview's claim of constructing two septic system reserve drain fields on
the disputed land. Taking the facts in the light most favorable to the Nickells, the non-moving
party on summary judgment, we assume the presence of only one such drain field. Atherton
Condo. Apartment-Owners Assoc. Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d
250 (1990).
6
No. 41128-8-II
maintain the landscaping in this area.
In July 2005, the Hearing Examiner gave final plat approval for the Southview
subdivision, subject to two conditions, one of which required Southview to place an advisory note
on the final plat indicating the existence of an "easement issue" with a different neighbor, which
created the potential for future litigation. CP at 61. The County sent a copy of this final plat
approval to all parties of record, including the Nickells, with instructions for aggrieved parties to
seek reconsideration.
In 2008, a neighbor (and member of Southview Homeowners Association) came onto the
Nickells' land and informed them that Southview's greenbelt extended to and included the
arborvitae hedges that the Nickells had planted in the 1990s. The Nickells engaged the services of
a professional land surveyor, who concluded that (1) as of November 2008, the disputed strip had
been cultivated in the current manner and present location for 23 years; and (2) despite customary
surveying practices, previous land surveys of the property included no notation of the Nickells'
landscaping encroaching over the common boundary onto Southview's land.
II. Procedure
After informal resolution of the dispute failed, the Nickells brought a quiet title action
against Southview. Southview moved for summary judgment dismissal of the Nickells' claims,
arguing that (1) the property was vacant land and, thus, a presumption of permissive use applied;
and (2) the doctrine of estoppel prevented the Nickells' adverse possession of the land because
they did not object during the Southview platting process. The superior court granted summary
judgment in favor of Southview, ruling that the doctrine of estoppel in pais applied and that the
7
No. 41128-8-II
Nickells' silence had induced Southview's and its predecessors' reliance on their claims of
ownership.7
ANALYSIS
The Nickells argue that the superior court erred in granting summary judgment because
(1) by June 1995, they had acquired full title to the disputed strip by adverse possession; (2) the
prescriptive easement "vacant lands doctrine"8 should not be imported here and does not apply
because their use of the land was permanent, not sporadic, and occurred on land undergoing
suburban plat approval; and (3) RCW 36.70A.165, the greenbelt statute, did not bar their adverse
possession of the disputed strip because the legislature did not enact the statute preventing
adverse possession of a designated greenbelt until 1997, after they had completed their adverse
possession period.
Southview responds that the superior court properly granted summary judgment because
(1) the Nickells cannot show the element of hostility, defeating their adverse possession claim; (2)
7 More specifically, the superior court explained:
I'm going to grant defendant's motion for summary judgment. I believe that
there's clear and convincing evidence in this case that the doctrine of estoppel in
pais applies. The Dorward, Harlan, and Alcorn cases support the contention that
silence by the property owner is sufficient if it induces reliance. In this case, it
induced reliance on the part of Chopp and developers of the adjacent property as
well as other county officials who granted the plat, and so I'm going to grant
summary judgment on that basis.
Verbatim Report of Proceedings (VRP) at 24. The cases to which the superior court
referred are Dorward v. ILWU-PMA Pension Plan, 75 Wn.2d 478, 452 P.2d 258 (1969);
Thomas v. Harlan, 27 Wn.2d 512, 178 P.2d 965 (1947); and Alcorn v. Trailer City v.
Blazer, 17 Wn. App. 782, 572 P.2d 15 (1977).
8 Reply Br. of Appellant at 15.
8
No. 41128-8-II
the presumption of permissive use from the "vacant lands doctrine"9 applied, as demonstrated by
adverse possession case law's frequent citation of the seminal case on the vacant land doctrine;
and (3) RCW 36.70A.165, which prohibits adverse possession of a designated greenbelt, barred
the Nickells' claim. The Nickells' arguments prevail.
I. Standard of Review
We review summary judgment orders de novo, performing the same inquiry as the
superior court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004).
The superior court properly grants summary judgment when there is no genuine issue of material
fact and the moving party is entitled to judgment as a matter of law. Morin v. Harrell, 161
Wn.2d 226, 230, 164 P.3d 495 (2007) (citing CR 56(c)).
In a summary judgment motion, the burden is on the moving party to demonstrate that
summary judgment is proper. Atherton Condo. Apartment-Owners Assoc. Bd. of Dirs. v. Blume
Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990). We consider all the facts submitted and the
reasonable inferences from them in the light most favorable to the nonmoving party. Atherton,
115 Wn.2d at 516. And we resolve any doubts about the existence of a genuine issue of material
fact against the party moving for summary judgment. Atherton, 115 Wn.2d at 516. "Summary
judgment is appropriate only if, from all the evidence, reasonable persons could reach but one
conclusion." Lilly v. Lynch, 88 Wn. App. 306, 312, 945 P.2d 727 (1997).
II. Title by Adverse Possession
To establish a claim of adverse possession, the burden is on the claimant to prove by a
9 Br. of Resp't at 36.
9
No. 41128-8-II
preponderance of the evidence that the claimant's possession is (1) exclusive, (2) actual and
uninterrupted, (3) open and notorious, and (4) hostile. ITT Rayonier, Inc. v. Bell, 112 Wn.2d
754, 757, 774 P.2d 6 (1989). Each of the necessary elements must have existed for ten years.
ITT Rayonier, 112 Wn.2d at 757 (citing RCW 4.16.020).10 "A claimant can satisfy the open and
notorious element by showing either (1) that the title owner had actual notice of the adverse use
throughout the statutory period or (2) that the claimant used the land such that any reasonable
person would have thought he owned it." Riley v. Andres, 107 Wn. App. 391, 396, 27 P.3d 618
(2001). Hostility requires "that the claimant treat the land as his own as against the world
throughout the statutory period." Chaplin v. Sanders, 100 Wn.2d 853, 860-61, 676 P.2d 431
(1984). "[I]f the use of another's land is open, notorious and adverse, the law presumes
knowledge or notice in so far as the owner is concerned." Hovila v. Bartek, 48 Wn.2d 238, 241-
42, 292 P.2d 877 (1956).
When a person adversely possesses real property for ten years, such possession ripens into
an original title. El Cerrito, Inc. v. Ryndak, 60 Wn.2d 847, 855, 376 P.2d 528 (1963).
Divestment of title does not occur differently or more easily to the person who acquires title
passively by adverse possession than to the person who acquires title by deed. See El Cerrito, 60
Wn.2d at 855. Thus, once a person acquires title by adverse possession, he cannot divest his
10 RCW 4.16.020(1):
For actions for the recovery of real property, or for the recovery of the possession
thereof; and no action shall be maintained for such recovery unless it appears that
the plaintiff, his or her ancestor, predecessor or grantor was seized or possessed of
the premises in question within ten years before the commencement of the action.
10
No. 41128-8-II
property interest by "parol abandonment,"11 relinquishment, verbal declarations, or any other act
short of what would be required had he acquired his title by deed. Mugaas v. Smith, 33 Wn.2d
429, 431, 206 P.2d 332 (1949) (quoting Towles v. Hamilton, 94 Neb. 588, 143 N.W. 935, 936
(1913)). A person who acquires title by adverse possession can convey it to another party
without having had title quieted to him before the conveyance. El Cerrito, 60 Wn.2d at 855. The
10-year statute of limitations does not require the owner by adverse possession to have held the
property in an adverse manner continuously up to the time he seeks to quiet title by lawsuit. El
Cerrito, 60 Wn.2d at 855. Instead, he may bring his action any time after he has held possession
adversely for ten years. El Cerrito, 60 Wn.2d at 855.
The Nickells claim that they completed 10 years of adverse possession of the disputed
strip by June 1995. Southview counters that we should apply a presumption of permissive use
based on the "vacant lands doctrine" from prescriptive easement case law and deny the Nickells'
claim based on their failure to show the adverse possession element of hostility. Br. of Resp't at
28, 30 (quoting Drake v. Smersh, 122 Wn. App. 147, 154, 89 P.3d 726 (2004) (quotation marks
omitted)).
Our Supreme Court articulated the "vacant lands doctrine" in Northwest Cities Gas Co. v.
Western Fuel Co., 13 Wn.2d 75, 86, 123 P.2d 771 (1942). Drake, 122 Wn. App. at 154. It held
that, to prevail on a prescriptive easement claim over wild, unoccupied, prairie lands where land is
"vacant, open, unenclosed, unimproved," the claimant must first rebut a presumption of
11 In Washington, a person may convey real estate, or any interest thereof, only by written deed.
Any attempt to convey property without such writing is generally invalid. See RCW 64.04.010;
Kesinger v. Logan, 113 Wn.2d 320, 325-26, 779 P.2d 263 (1989).
11
No. 41128-8-II
permissive use. N.W. Cities Gas, 13 Wn.2d at 85-86 (alteration in original). Southview's
argument ignores that (1) the Hearing Examiner described the site as located within a medium-
intensity residential environment, not vacant land; and (2) although the law disfavors prescriptive
easements, no such disfavor applies to adverse possession of actual land. N. W. Cities Gas, 13
Wn.2d at 83; Kunkel v. Fisher, 106 Wn. App. 599, 603 n.12, 23 P.3d 1128, review denied, 145
Wn.2d 1010 (2001). Southview further argues that a presumption of permissive use protects
landowners from claims arising by "casual trespassers." Br. of Resp't at 32. But Southview
ignores that the Nickells openly, continuously, and exclusively treated the disputed strip as their
own property; they were not casual trespassers.
The Nickells presented evidence that, as of November 2008, the disputed strip had been
landscaped and maintained at its present location for 23 years. As part of the preliminary plat
application, Southview's predecessors in interest had conducted a survey in 1993, which should
have put the owners on notice of the Nickells' landscaping improvement encroaching over the
common boundary. Construing these facts and the reasonable inferences from them in the light
most favorable to the Nickells, we hold that they satisfy the elements of adverse possession,
including the element of hostility. Atherton, 115 Wn.2d at 516. Recognizing that by June 1995,
the Nickells had thus acquired title to the disputed strip by adverse possession, we next consider
whether the greenbelt statute, RCW 36.70A.165, or the estoppel doctrine divested the Nickells of
their adverse possession title.
III. No Divestment of Title by Adverse Possession
Southview next argues that RCW 36.70A.16512 barred the Nickells' adverse possession
12
No. 41128-8-II
of the disputed strip as of June 1995. The legislature, however, did not enact the statute
preventing adverse possession of a designated greenbelt until 1997; and this statute does not
provide for retroactive application. See Laws of Washington, ch. 429 § 41 (1997).13 Therefore,
RCW 36.70A.165 neither barred the Nickells' claim nor divested them of their title by adverse
possession.14
The doctrine of equitable estoppel rests on the principle that a person "shall not be
permitted to deny what he has once solemnly acknowledged." Arnold v. Melani, 75 Wn.2d 143,
147, 449 P.2d 800 (1968). "'[W]here a person, by his acts or representations, causes another to
change his position or to refrain from performing a necessary act to such person's detriment or
prejudice, the person who performs such acts or makes such representations is precluded from
asserting the conduct or forbearance of the other party to his own advantage.'" In re Marriage of
Barber, 106 Wn. App. 390, 396, 23 P.3d 1106 (2001) (quoting Hartman v. Smith, 100 Wn.2d
766, 769, 674 P.2d 176 (1984)). Before we can apply estoppel in pais or equitable estoppel,
three things must occur:
12 RCW 36.70A.165 provides:
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.
13 Statutes generally operate prospectively; unless remedial in nature, we do not apply statutes
retroactively. Miebach v. Colasurdo, 102 Wn.2d 170, 180-81, 685 P.2d 1074 (1984).
14 Moreover, the plat did not designate the disputed strip as greenbelt until 2005, 10 years after
the Nickells had completed their 10-year adverse possession of the strip.
13
No. 41128-8-II
(1) an admission, statement, or act inconsistent with the claim afterwards asserted;
(2) action by the other party on the faith of such admission, statement, or act; and
(3) injury to such other party resulting from allowing the first party to contradict
or repudiate such admission, statement, or act.
Thomas v. Harlan, 27 Wn.2d 512, 518, 178 P.2d 965 (1947); see also Dorward v. ILWU-PMA
Pension Plan, 75 Wn.2d 478, 484, 452 P.2d 258 (1969). Courts disfavor equitable estoppel;
thus, the reviewing court requires the aggrieved party to prove every element with clear, cogent,
and convincing evidence, and also to show detrimental reliance. Barber, 106 Wn. App. at 396.
Here, the burden is on Southview to establish the estoppel elements by "clear and convincing"
evidence. Thomas, 27 Wn.2d at 518. It fails to carry this burden.
1. Silence or act inconsistent with claim of title
The Nickells argue that they were merely silent and committed no act to prompt estoppel.
Southview responds that the Nickells allegedly "surrendered" the land to Chopp in 2004 or 2005
and that this act of surrendering constituted an "act," satisfying the first element of the estoppel
test. Br. of Resp't at 13, 17. Under some circumstances, Washington courts consider
intentionally deceptive silence to be an act for estoppel purposes:
Mere silence, without positive acts, to effect an estoppel, must have operated as a
fraud, must have been intended to mislead, and itself must have actually misled.
The party keeping silent must have known or had reasonable grounds for believing
that the other party would rely and act upon his silence. The burden of showing
these things rests upon the party invoking the estoppel.
Codd v. Westchester Fire Ins. Co., 14 Wn.2d 600, 606-07, 128 P.2d 968 (1942) (quoting Blanck
v. Pioneer Mining Co., 93 Wash. 26, 34, 159 P. 1077 (1916)). Such silence does not rise to the
level of an act inconsistent with the Nickells' claim of title here.
14
No. 41128-8-II
In this case, the evidence shows that, although the Nickells had adversely possessed the
disputed strip for 10 years by June 1995, at least until late 2004, they had done so unaware of any
other's claim of ownership. In late 2004 or early 2005, new adjacent land owner Chopp entered
the Nickells' land and told them for the first time that (1) their landscaping extended onto
15
No. 41128-8-II
his property, (2) he planned to remove part of their landscaping in order to install a septic system,
and (3) "not to worry" because the County had designated the strip as greenbelt. CP at 32.
Although the Nickells were "flabbergasted," they did not prevent Chopp from installing a septic
system on the strip and removing part of their lawn; and they returned to caring for the disputed
strip as their own property. CP at 32.
Southview characterizes these events as "deceptive" without showing any evidence of
deception or intent to deceive or to mislead by the Nickells.15 Br. of Resp't at 11. Nor does
Southview point to any evidence that the Nickells ever agreed to waive their right to bring a later
action to quiet title to the disputed strip, or that they otherwise conveyed away their already-
acquired adverse possession title to Southview. In short, Southview does not show that the
Nickells were silent with any intent to defraud; and the evidence is undisputed that, despite their
alleged "silence," the Nickells continued their "positive acts" of ongoing landscaping and use of
the disputed strip. Codd, 14 Wn.2d at 607. Thus, Southview fails to establish the first element of
the estoppel test: "an admission, statement, or act inconsistent with the claim afterwards
asserted." Thomas, 27 Wn.2d at 518.
2. Reliance
Southview argues that the trial court properly applied the estoppel doctrine because
15 Southview criticizes Karen Nickell for having failed to assert her adverse possession of the
disputed strip to the Hearing Examiner at the 1994 plat approval hearing. But Southview fails to
show that she had any knowledge of the boundary dispute at that time.
16
No. 41128-8-II
Southview, Pierce County, and individual homeowners16 all relied on the Nickells' "surrender" of
the disputed strip to Chopp and the Nickells' "delay" in seeking court action to quiet title to the
disputed strip. Br. of Resp't at 13, 22. The Nickells argue that they never "surrendered" the strip
to Chopp and that Southview had no right to rely on their "delay"17 in seeking to quiet title
because they (the Nickells) had no more, and likely less, knowledge of a boundary dispute than
Southview had. Reply Br. of Appellant at 4 n.2. The record supports the Nickells' position.
"[A]bsent fraud or misrepresentation, estoppel runs in favor only of those who have
reasonably relied on another's conduct or declarations." Leonard v. Wash. Employers, Inc., 77
Wn.2d 271, 281, 461 P.2d 538 (1969). "Not all those who rely upon another's conduct or
statements may raise an estoppel. Rather, it is only those who have a right to rely upon such acts
or representations." Leonard, 77 Wn.2d at 280. "'Full knowledge of the facts is essential to
create an estoppel by silence or acquiescence.'" Codd, 14 Wn.2d at 606-07 (quoting Blanck, 93
Wash. at 34). "[M]ere silence or acquiescence will not operate to work an estoppel where the
16 In addition to criticizing the Nickells for failing to alert the Hearing Examiner about their
adverse possession claim at the 1994 plat approval hearing, Southview faults the Nickells for not
bringing an action to quiet title in 2005, when the Examiner's final plat approval included the
condition that Southview note on the face of the plat an easement issue and accompanying
potential for future litigation involving a different neighbor, not the Nickells.
Although Chopp's intrusion in late 2004-early 2005 may have put the Nickells on initial
notice of a boundary dispute, Southview's argument attempts to place on the Nickells all
responsibility for communicating the boundary dispute to the Hearing Examiner, despite the
Hearing Examiner's condition placing the onus on "[t]he applicant," namely Southview. CP at
61. Furthermore, Southview's argument attempts to elevate the legal significance of final plat
approval such that the lack of an adverse possession claim notation on the plat somehow forfeited
the Nickells' adverse possession claim.
17 Br. of Resp't at 22.
17
No. 41128-8-II
other party has constructive notice of public records which disclose the true facts." Waldrip v.
Olympia Oyster Co., 40 Wn.2d 469, 476, 244 P.2d 273 (1952). "Where both parties can
determine the law and have knowledge of the underlying facts, estoppel cannot lie." Lybbert v.
Grant County, 141 Wn.2d 29, 35, 1 P.3d 1124 (2000).
Here, in late 2004 or early 2005, Chopp knew that the Nickells' mature landscaping
encroached on the recorded boundary of the adjacent land that he had purchased. As a new
owner and a land developer, Chopp presumably had access to the 1993 land survey that his
predecessors had conducted. Arguably, Chopp's assurance that the Nickells need not "worry"
about his activities delayed their seeking to quiet title until 2008, when a Southview Homeowners
Association member contacted them about the strip, only then making a lawsuit necessary. CP at
32.
Even assuming that Chopp's entrance onto their property in late 2004 or early 2005 put
the Nickells on notice of his claim of ownership, the Nickells sought to quiet title well within the
10-year statute of limitations following their completed 10-year adverse possession period. RCW
4.16.020.18 In similar circumstances, Division Three of our court concluded:
[T]he Roys[, who claimed title by adverse possession,] did not deem a lawsuit
necessary until [three years after threatening a lawsuit]. Bearing in mind the period
of time during which a person may legally bring a lawsuit after a cause of action
arises regarding real property, failure to sue immediately after an assertion of a
possessory interest in land does not amount to a representation that a claim has
been abandoned. Moreover, the Meyerses' subsequent improvements and
18 RCW 4.16.020(1):
For actions for the recovery of real property, or for the recovery of the possession
thereof; and no action shall be maintained for such recovery unless it appears that
the plaintiff, his or her ancestor, predecessor or grantor was seized or possessed of
the premises in question within ten years before the commencement of the action.
18
No. 41128-8-II
conveyances despite actual notice of the Roys' claim were undertaken without the
requisite "right to rely." Estoppel was therefore not established.
Roy v. Cunningham, 46 Wn. App. 409, 416, 731 P.2d 526 (1986) (emphasis added), review
denied, 108 Wn.2d 1018 (1987). Adopting Division Three's rationale, we similarly hold that
Southview has not established a right to rely on the Nickells' "delay"19 in pursuing a quiet title
action as a representation that they had abandoned their claimed ownership of the strip by adverse
possession.
Southview having failed to show the first two elements of estoppel, we do not address the
third. Because Southview cannot establish estoppel, we hold that the trial court improperly
granted Southview summary judgment on this ground.
IV. Equity
Based on our Supreme Court's decision in Proctor v. Huntington, 169 Wn.2d 491, 238
P.3d 1117 (2010), cert. denied, 131 S. Ct. 1700 (2011), Southview argues that we should affirm
summary judgment here because "[r]ote enforcement of real estate doctrine, without
accommodation for harsh effect, is contrary to equity." Br. of Resp't at 25. Again, we disagree.
First, Southview apparently claims "harsh effect" by incorrectly asserting that the Nickells
seek Southview's ejectment from the disputed strip. Br. of Resp't at 25. According to the
Nickells, they "have not requested ejectment." Reply Br. of Appellant at 19. Nor does the record
suggest such requested ejectment or any other "harsh effect"20 on Southview flowing from the
19 Br. of Resp't at 22.
20 Br. of Resp't at 25.
19
No. 41128-8-II
Nickells' gaining title to the strip by adverse possession.21 Second, Southview's reliance on
Proctor is misplaced because, unlike the circumstances here, Proctor addresses only actual
ejectment; "adverse possession and estoppel claims [were] not before [the Supreme Court] on
review." Proctor, 169 Wn.2d at 495 n.2.
We reverse summary judgment for Southview and remand for further proceedings.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2.06.040, it
is so ordered.
Hunt, P.J.
We concur:
Van Deren, J.
Johanson, J.
21 On the contrary, the record reflects that the Nickells allowed Chop to construct part of a
subdivision septic tank on the strip and that, apparently, they have not demanded its removal.
20
|
