our difficult neighbor waited until we poured the foundation of our
garage before letting us know that she thought we had built slightly
over the line . . .  as in inches, or possibly a foot or two at most

technically, it's the difference between an old plat survey and a new
plat survey that creates this very narrow wedge shaped area that is
disputed.  when we realized this, we relied upon an adverse possession
argument, which is pretty iron-clad (we have written and photographic
proof that the line has been as we measured it to be for at least 40
years, along an old barbed wire fence).

meanwhile she has planted 10-12 Lombardi poplar trees, which are
growing and growing and growing.  These trees become behemoths
eventually, and not only will their roots pose a threat to the
foundation of our garage, they now obscure the view of another
neighbor to the north, and are quite an unwanted presence.  Since we
occassionally get very strong nor'easters in winter time, there is
also the concern that one of these giants could possibly fall onto our
house someday.

we own one quarter acre; she owns five.  Our house stands about 15
feet away from this line of trees; her house is set back from them by
about 200 feet.

She also put a lien on our property, filed with the county.

this all happened some years ago, and every once in a while I question
if there is some action I should be taking, for instance:

1) what should we do about those trees?  what are our legal rights in
this case? (we'd like them gone)

3) should we go ahead and put a lien on her property too?  

Any / all thoughts and considerations are welcome, and a solid answer
would be just peachy, thanks.


***

---

Request for Question Clarification by hagan-ga on 18 May 2006 07:24 PDT

Hello Timespacette.  Sorry for your trouble, and I'm not sure I can
answer this -- but it's possible I could provide some guidance with a
little more information.
First -- what state are you in?
Second -- you say "this all happened some years ago," and I'm afraid I
need a little more detail.  I assume you mean you poured the garage,
then she notified you of the dispute, then planted trees.  Could you
give the dates for each event, please?  It could be important.
Third -- are the trees entirely on her property?
And finally -- what was the basis for her lien?  Did she file a
lawsuit?  Did she file a "lis pendens," to your knowledge?

Sorry for all the questions, but these are all important details. 
Thanks in advance!

---

Clarification of Question by timespacette-ga on 18 May 2006 08:23 PDT

hello hagan-ga, thanks for your interest . . .

1) I am in Washington state

2) We poured the garage in 1999, she filed the lien within a year
after that; she planted the trees around 2001.

3) Yes, even according to where we claim the property line to be, the
trees are on her property. They are just VERY CLOSE to a fence we
built and the foundation of our garage. And they are very fast
growing, so-to-be-large trees. We feel that she did it specifically to
encroach upon our area.

4) she did not file a lawsuit.  The term 'lis pendens' has not shown
up on any document, and she has never written or stated that term to
my knowledge.  On the document it just says that the line is in
dispute. What does 'lis pendens' mean, by the way?

thank in advance . . .

ts

***

---

Clarification of Question by timespacette-ga on 18 May 2006 08:55 PDT

oops!  I mean 'THANKS' !

Hello again!  I hope the following information will be useful -- but I
will strongly advise you to get professional advice as well, because
the passage of time is often detrimental to your rights.

At the outset, let me express a concern.  I don't understand how your
neighbor was able to file a lien against your property without filing
a lawsuit first.  Ordinarily, you need either a judgment in your
favor, or special statutory grounds, before you can file a lien. 
(Statutory grounds would be something like a mechanic's lien, where
you've done work on the property and haven't been paid, or a tax
lien.)

In all my research, I can't find any legal grounds for filing a lien
on the basis of a property line dispute, without the dispute being
resolved by a judgment against you.  It's possible there's a special
statute in Washington that I'm not aware of.  But it's also possible
that your neighbor has filed a lien without the legal right to do so.

If she has filed a lien without the legal right to do so, YOU HAVE TO
ACT.  Do NOT sit on this.  In fact, I'll go so far as to say that you
should act on this EVEN IF there is some special law in Washington
that allows her to file a lien just on the basis of the plat survey. 
DO NOT SIT ON YOUR RIGHTS, because that's how rights get lost.

I'm sorry to echo Daniel2's unhelpful comments below, but in this case
you really should seek professional advice.  That lien is a cloud on
your title.  You will never be able to do anything with your property
(sell, re-finance, etc.) as long as that cloud hangs there.  What's
more, if your neighbor has filed a lien without any legal right to do
so, that's known as "slander of title," and it's actionable.

I do NOT suggest filing a lien against her property yourself, for the
reasons expressed above. You don't appear to have a basis for doing
so.  For a discussion of lien claims against real property under
Washington law, this case is a good review:
98 Wn. App. 190, RICHAU v. RAYNER (1999)
Case won't hotlink, but this service:
http://search.mrsc.org/nxt/gateway.dll?f=templates&fn=courts.htm$vid=courts:court
will find it based on the title.

You need some grounds to file a lien.  If you file a lien without a
basis for doing so, you have committed "slander of title," which is
also discussed in the case cited above.
 
As for the trees, it's difficult to say with certainty because I can't
see them.  Ordinarily, of course, you're entitled to plant whatever
you like.  But there is a concept known as a "spite fence," where a
difficult neighbor builds a 15-foot-high monstrosity just out of
spite, and those are considered nuisances, and courts have forced
people to tear them down.

Trees planted right on the boundary, that are going to grow as you
describe, have been considered to be a "spite fence" by some courts,
notably in Rhode Ilsand and California.
See http://www.swlearning.com/blaw/cases/real/0404_real_03.html
and
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=wa&vol=2006_app/554999MAJ&invol=4
and
http://forum.freeadvice.com/showthread.php?t=194165

The Washington spite fence statute states:  'An injunction may be
granted to restrain the malicious erection, by any owner or lessee of
land, of any
structure intended to spite, injure or annoy an adjoining proprietor.  And
where any owner or lessee of land has maliciously erected such a structure
with such intent, a mandatory injunction will lie to compel its abatement
and removal.'  
Revised Code of Washington (RCW) 7.40.030, at
http://apps.leg.wa.gov/rcw/default.aspx?cite=7.40.030

Here is a discussion of trees and fences you might find useful, at
http://www.lectlaw.com/files/lat05.htm
"General fence height restrictions may apply to natural fences--fences of
bushes or trees--whether or not they are specifically mentioned, if they
meet the ordinance's general definition of fences. Whether trees and
bushes are considered fences depends on the location of the trunks, the
particular ordinance, and whether or not they are actually used as a
fence. When natural fences are singled out in the laws, the height
restrictions commonly range from five to eight feet.(4)
"Example: A fellow in Washington state had thirteen Douglas fir trees on
the border of his property. He called them "yard landscaping." His
neighbor complained, probably because of a blocked view, and the town
sued him to comply with its fence ordinance. The court called the trees
a fence, which under the local town ordinance was restricted to eight
feet. The particular regulation in this case contained the language
"naturally grown or constructed," so it applied to the Douglas firs. The
man had to cut them."

And finally, some language from a Washington case dealing with the
Washington spite fence statute:
?We conclude that in order to apply the spite fence statute, RCW
7.40.030, to restrain the erection of a fence or other structure or to
abate an existing structure, the court must find (1) that the
structure damages the adjoining landowners enjoyment of his property
in some significant degree; (2) that the structure is designed as the
result of malice or spitefulness primarily or solely to injure and
annoy the adjoining landowner; and (3) that the structure serves no
really useful or reasonable purpose.?
11 Wn. App. 59, J. C. BAILLARGEON et al., Respondents, v. A. G. PRESS
(Again, the search service doesn't hotlink the individual cases, so go to
http://www.mrsc.org/nxt/gateway.dll?f=templates&fn=courts.htm$vid=courts:court
and search either using the case name or the search terms "spite fence.")

Oh, and you asked about "lis pendens."  It's a document that is
usually filed at the inception of any lawsuit dealing with ownership
of real property, and it's intended to put any potential purchasers on
notice that there is a dispute about ownership.  But again, it's only
filed when a lawsuit is actually pending.

I hope this information has been useful.  Please don't hesitate to ask
if there's any clarification you need.  Best of luck.

---

Request for Answer Clarification by timespacette-ga on 18 May 2006 20:40 PDT

hello hagan-ga

Your information about a 'spite fence' is just the kind of thing I was
looking for, thanks.

re: the lien.  well, it turns out I had some misinformation about what
exactly she did file with the county.  She herself told me it was a
lien, but when I was able to access it online this afternoon I see
that in fact it is not a lien, but an affadavit --  a 'temporary
trespass easement' with a declaration that there is a property line
dispute.

in the affidavit she states:  "It is my belief there is a possible
encroachment on my property. The North wall of the _____'s recently
built 'garage/shop' is in the record gap area.  I have consented to
their use of the area in an attempt to not escalate our differences,
yet I have an objection to their claim of ownership. I have previously
granted a trespass easement for their use only, and want to be on
record that the matter of who owns the record gap area is not
resolved."

(the 'record gap area' is the area that signifies the difference
between the old plat survey and the new plat survey.  I'm not sure why
she said 'previously granted a trespass easement' when the easement
and the statement above seem to be all one document)

I think I understand what her strategy is here, but I would be
interested to know your take on this . . . ?

and thank you again for putting time into this!    it has helped me
focus my thoughts around the issue, and I do intend to consult an
attorney soon.

ts

***

---

Clarification of Answer by hagan-ga on 19 May 2006 13:56 PDT

I'm glad I was able to help, and I think I understand a bit better now
that we're not talking about a lien.  What she has done is to put all
potential buyers of the property on notice that there is a boundary
line dispute.  She's preventing you or a future buyer from claiming a
prescriptive easement or adverse possession based on the garage
encroachment.  Remember, a prescriptive easement/adverse possession
depends on your doing so "adversely" to the true owner, i.e., without
permission.  She's making it clear that she's granting temporary
permission here, not waiving her claim to the land entirely.

I still recommend consulting a professional.  It's possible that you
could lose the right to contest her affidavit if you wait.

Let me know if you need anything else, and thanks!

thanks much; this was a good beginning . . .

Forget Google Answers.  You need a real estate attorney.
1)  Adverse possession requires you pay taxes on the property and
openly use the property without permission.
2) It was your responsibility to make sure where the property lines
were before you built.  That could have been done and can now be done
by having a survey done.
3) She can plant any kind of trees she wants.  It is her property.

geez, google answers USED TO BE a fairly decent place to at least have
a friendly discussion . . .

I may or may not get a real estate attorney at some point, but if you
don't mind I'd like to keep the question open and see what the GARs
have to offer

I did notice, daniel2d, that almost every comment you've offered
recently suggests that the person consult a professional

are you by any chance . . . . a professional?

***

Timespacette,
Fact is, you do need an attorney.  If you tell us the state, maybe
someone can give you more information.  Adverse possession depends on
the period that notorious and undisputed use of the area existed,
which seems to have been for many years prior to your neighbor's
action.

There are probably state, county or municipal rules about encroachment
of trees on  neighboring property.  You may have seen the recent
question on this subject.  There may also be restrictions on the
variety of trees planted within a defined distance from the property
line, but like with adverse possession, there could be a limit to the
period within which the neighbor can complain.

Again, information on the location would help find information for you.
Regards, Myoarin

First very few things in law are a slam dunk, esp. adverse possession,
b/c adverse possession is the transfer of porperty rights from one
person to another with out compensation very hard remedy

That said what ever the new survey says is the controlling authority
untill you go to court and it will be your burden to show adverse
possession not easy, thus untill that point if the new survey shows
your over the line then that's what it is, also must areas have
requirments that you build a certain amount of feet of the property
line, but untill you get a court order in equity court of adverse
possession you do not own the property in dispute and could have a
cloud title to your property