Nickell v. Southview Homeowners Ass'n

• Decision Date: 04 January 2012
• Docket Number: No. 41128–8–II.,41128–8–II.
• Citation: 271 P.3d 973
• Parties: Robert NICKELL and Karen Nickell, husband and wife, Appellant, v. SOUTHVIEW HOMEOWNERS ASSOCIATION, a Washington nonprofit Corporation, Respondents.
• Court: Washington Court of Appeals

271 P.3d 973

Robert NICKELL and Karen Nickell, husband and wife, Appellant,

v.SOUTHVIEW HOMEOWNERS ASSOCIATION, a Washington nonprofit Corporation, Respondents.

No. 41128–8–II.

Court of Appeals of Washington, Division 2.

Publication Ordered March 13, 2012.Jan. 4, 2012.

George Scott Kelley, Attorney at Law, Tacoma, WA, for Appellant.

Annette T. Fitzsimmons, Attorney at Law, University Place, WA, for Respondents.

HUNT, P.J.

¶ 1 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 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

¶ 2 Robert ⁴ 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 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.

¶ 3 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.

¶ 4 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 installed a septic system ⁶ for one of the intended lots. Afterwards, the Nickells continued to maintain the landscaping in this area.

¶ 5 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.

¶ 6 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

¶ 7 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 Nickells' silence had induced Southview's and its predecessors' reliance on their claims of ownership.⁷

ANALYSIS

¶ 8 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.

¶ 9 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) 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

¶ 10 We review summary judgment orders de novo, performing the same inquiry as the superior court. Hisle v. Todd Pac. Shipyards Corp., 151 Wash.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 Wash.2d 226, 230, 164 P.3d 495 (2007) (citing CR 56(c)).

¶ 11 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 Wash.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 Wash.2d at 516, 799 P.2d 250. And we resolve any doubts about the existence of a genuine issue of material fact against the party moving for summary judgment. Atherton, 115 Wash.2d at 516, 799 P.2d 250. “Summary judgment is appropriate only if, from all the evidence, reasonable persons could reach but one conclusion.” Lilly v. Lynch, 88 Wash.App. 306, 312, 945 P.2d 727 (1997).

II. Title by Adverse Possession

¶ 12 To establish a claim of adverse possession, the burden is on the claimant to prove by a 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 Wash.2d 754, 757, 774 P.2d 6 (1989). Each of the necessary elements must have existed for ten years. ITT Rayonier, 112 Wash.2d at 757, 774 P.2d 6 (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 Wash.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 Wash.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 Wash.2d 238, 241–42, 292 P.2d 877 (1956).

¶ 13 When a person adversely possesses real property for ten years, such possession ripens into an original title. El Cerrito, Inc. v. Ryndak, 60 Wash.2d 847, 855, 376 P.2d 528 (1963). Divestment of title does not occur...