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Boundary Issues: Associations and Owners Often Face Problems Involving Damage and Repairs that Straddle or Cross Property Lines
Note that the first inquiry to make in a situation in which an improvement appears to be on a boundary line is often whether the improvement is located on one parcel or another, or whether it straddles the two. This may involve examining legal descriptions and maps, and ultimately may require hiring a surveyor.
Boundary line disputes are often emotionally charged matters that can last for years. The most certain way to determine “on-the-ground” boundary lines is to hire a surveyor, which can be expensive. The surveyor can map boundary lines on the ground based on surveyor stakes and the legal descriptions of the properties.
But two legal doctrines may allow people to move those boundaries based on the conduct of the people who have owned the property on either side of the line:
- Adverse possession
- Mutual recognition and acquiescence.
To establish a claim of adverse possession, the burden is on the person claiming adverse possession to prove by a preponderance of the evidence (i.e., more likely than not) that the claimant’s possession is:
- Actual and uninterrupted
- Open and notorious
[Nickell v. Southview Homeowners Ass’n, 167 Wn. App. 42, 50 (Div. 2, 2012)]
Each of the necessary elements for an adverse possession claim must have existed for ten years. A claimant can satisfy the open and notorious element of adverse possession by showing either:
- That the title owner had actual notice of the adverse use throughout the statutory period
- That the claimant used the land such that any reasonable person would have thought he owned it
Hostility for an adverse possession claim requires that the claimant treat the land as his own as against the world throughout the statutory period.
Mutual Recognition and Acquiescence
Claims based on mutual recognition and acquiescence arguments involve purported boundary lines demarcated by things like fences and roads. The elements of mutual recognition and acquiescence include:
- The line must be certain, well defined, and in some fashion physically designated upon the ground, e.g., by monuments, roadways, fence lines, etc.
- In the absence of an express agreement establishing the designated line as the boundary line, the adjoining landowners, or their predecessors in interest, must have in good faith manifested, by their acts, occupancy, and improvements with respect to their respective properties, a mutual recognition and acceptance of the designated line as the true boundary line.
- The requisite mutual recognition and acquiescence in the line must have continued for that period of time required to secure property by adverse possession.
[Lamm v. McTighe, 72 Wash.2d 587, 593 (1967)]
The burden of proof is on the party asserting mutual recognition to show, by clear, cogent and convincing evidence, that both parties acquiesced in the line for the same period required to establish adverse possession—10 years. [Muench v. Oxley, 90 Wn.2d 637, 641, 584 P.2d 939 (1978)]
A common boundary dispute neighbors contend occurs when a tree located wholly on one party’s property that overhangs onto another. To cut down a tree or other plantings belonging to another without lawful authority is known as “timber trespass.” The trespassing offender is potentially subject to treble damages if it was done willfully. This means the statute allows the aggrieved party to obtain triple the damages amount suffered.
The key phrase with respect to timber trespass is “without authority.” Generally speaking, under Washington law, a landowner has legal authority to engage in self-help at his own expense and trim branches and roots that encroach upon his property. However, that does not give the landowner the right to cut down the tree on the adjacent land.
But what if the tree is located on the boundary line? The Washington State Court of Appeals addressed this issue in 2017. If a tree straddles the boundary line between two properties, the owners of each property own the tree as tenants in common and are each entitled to use, maintain and possess the tree without interfering with the other’s use of it, as set forth in the 2017 Herring v. Pelayo appellate case. The court reiterated that the common owners of the tree may lawfully trim vegetation overhanging their property, but not in a manner that the common owner knows will kill the tree.
So if you are considering cutting the branches of a tree near your property, the best practice would be to speak to the adjacent owner first if there is a chance the tree is not entirely located on your property. If there is an objection, consult a surveyor to determine the tree’s location. Since timber trespass carries such potentially stiff penalties, homeowners should proceed with caution if they are considering cutting down some or part of a neighbor’s tree.
In parts of the Pacific Northwest, it is a way of life to deal with rain most of the calendar year. Besides making commuting difficult, rain can cause a variety of problems for homeowners and potentially their neighbors. One common example: When accumulated rain or other surface water runs off one person’s property onto another’s, causing damage.
As explained by the state Supreme Court in Currens v. Sleek, Washington law recognizes the “common enemy doctrine” with respect to surface water. Surface water is “vagrant or diffused [water] produced by rain, melting snow, or springs.” The common enemy doctrine allows landowners to dispose of unwanted surface water in any way they see fit, without liability for resulting damage to a neighbor. The idea is that “surface water … is regarded as an outlaw and a common enemy against which anyone may defend himself, even though by so doing injury may result to others.”
This seemingly counterintuitive doctrine is not absolute and has a few exceptions. First, landowners may not inhibit the flow of a watercourse or natural drain way, such as a stream or gully. Second, landowners may not collect surface water on their property, only to dispose of it on a neighbor’s land. Finally, landowners who alter flow of surface water on their property must exercise their rights with due care by acting in good faith and avoiding unnecessary damage to the property of others.
Our state does not appear to have any cases that directly address maintenance of boundary fences. But across the country, it is generally understood that ownership of and responsibility for a boundary fence is determined by who “uses” the fence. A fence built on the boundary and used by only one owner, belongs to the person who built it. It does not become a “shared” fence until the neighbor actually “uses” it as his own fence. What does it mean to “use” the fence as your own fence? There are a number of definitions applied by the states:
- Occupancy: To “use” means to use the land right up to the fence line;
- Join: To “use” means to hook up your fence to the boundary fence.
- Enclosure: To “use” means to hook up to the boundary fence to entirely enclose your property.
By statute in our state, if someone builds a boundary fence that helps enclose a neighbor’s property, that neighbor is responsible for half of the value of the fence. [RCW 16.60.020.] (In other words, our state appears to focus on the “enclosure” aspect of the “use” concept.)
Community association and other property covenants also may provide guidance on who is responsible for fences, though such guidance is often lacking in detail. Look at the language of the covenants to help determine whether an association is in charge of fence repair and replacement—which helps ensure a uniform appearance of fences in the community—or whether it is an owner responsibility. Rarely is it a good idea for one entity to maintain one side, and another entity to maintain another, as a practical matter. More commonly, one entity repairs a shared fence with prior notice, and the two parties may ultimately split the cost.
Responsibility for maintenance and repair of retaining walls located on a shared boundary is somewhat counterintuitive. The general rule is that the landowner who cuts away land from the natural slope is responsible for the retaining wall. But the landowner who builds up fill behind a retaining wall—such as an uphill neighboring community who added fill to level the land to construct a parking lot— is responsible for the retaining wall. Accordingly, to figure out responsibility for a retaining wall that needs repair, a party will likely have to investigate the history of property development concerning the involved lots. If it is not possible to determine responsibility, one reasonable option is to draft an agreement regarding who will undertake the work and to split the costs: This reduces uncertainty about responsibility down the road and sets forth a procedure to follow when future repairs are needed.
Fortunately, party walls (i.e., walls between dwelling units) are often addressed in association or property covenants. Those covenants typically give either neighbor the option to fix the wall, and then the party undertaking the work may charge back. In a condominium situation, the wall may also be a common element that the association fixes as a common expense.
Issues involving or crossing over property lines can be contentious and time-consuming. Cooperation and compromise are often key to keeping costs down and obtaining prompt resolution. Many problems can be circumvented by providing prior notice and doing your homework to pinpoint the ownership of a boundary line improvement, and by entering into agreements ahead of time before and issue arises.
Co-Authored By Bennett Taylor, Esq.
Associate Attorney, Leahy Fjelstead Peryea
Bennett Taylor is an associate attorney at Leahy Fjelstead Peryea. He lives in the Greenwood neighborhood of Seattle with wife Lindsay, their new daughter Sloane, and his cat, Peanut.
Co-Authored By Allison Peryea, Esq.
Shareholder Attorney, Leahy Fjelstad Peryea
Allison Peryea is a shareholder attorney at Leahy Fjelstad Peryea in Seattle, Washington. Her law firm almost exclusively focuses its practice on serving community association clients. Allison’s practice includes litigation, covenant enforcement, and general counsel assistance to clients. She is a member of the WSCAI Communications Committee and a former editor of the WSCAI Journal. She is also a humor columnist for national website Above the Law.