There are two overarching issues that you need to be looking at here. (A) Who has ownership of the private road and by what means? (B) Is Parcel B clouded by adverse possession or prescriptive easement? I will take them up in turn.

A: You indicate that this is "a parcel that is bisected by a private road." The analytical process of deducing whether or not it is the property of your current owner is as follows. First, have a title report pulled to see if someone other than those up your prospective seller’s chain of title lays any type of claim to that road.

Notwithstanding if there is ownership or use found up the chain of title, absent the unlikely event of severing of that title by adverse possession, it is possible that it is owned outright by someone else OR jointly by the seller with someone else. That is something that you should know going into this transaction and its ramifications. [It sounds like you already did this though, right?]

OK, then identify if there are any properties for which the roadway is the only means of access. If this is the case, then an easement by necessity has most likely been established.

Also, on the off chance that you identify that this is not a private road, but rather a public road, you will want to consult RCW 36.87.090.

B: As to whether or not adverse possession or prescriptive use was established with respect to Parcel B, you implicitly provided four facts. Parcel B: (1) is bounded by the bisecting road; (2) has an encroaching driveway; (3) has a lawn; and (4) has an old unoccupied home. However, you indicate that the later three facts might occupy about 1/4 of the space [of Parcel B.]

Assuming that the lawn was maintained, on paper it sounds as if the personal representative has a good case for adverse possession. However, before any attorney can really give you definitive advice this matter, he or she would need to actually take a look at the land first.

There are a couple of other points that you should consider. First, Washington is one of the few states that still has what is called the Deadman's Statute. With limited exceptions, what this means is that evidence offered in a case brought against the interest of someone that has passed away will be excluded. Adding more complexity to these types of matters, consider that the one claiming adverse possession must prove their case.

What this means is that while you don't need to prove a thing, if the adverse possessor did start to make significant argumentative inroads, you might not be able to refute them because of the Deadman's Statute - a very unfortunate place to find yourself.

However, the fact that the house is up for sale is particularly interesting. Why? Because right at the top of the seller's Form 17 are issues related to the Marketability of Title and Boundary Issues. As a result, with both your prospective seller AND the personal representative, you appear to have some pretty formidable leverage.

You might want to talk to an attorney about whether you should put your prospective seller, the personal representative, or perhaps both on notice of the potential boundary dispute. If you were already in the house the analysis with the personal representative would go something along the line of this ... (A) Once put on notice of the issue, he or she will either have to negotiate with you or risk not finding a buyer willing to step into a boundary dispute mess. (B) They will soon be gone so you can take a firmer stance than with someone who you are going to have as your neighbor for the indefinite future.

Notably, if you were my client in this particular situation, I almost certainly would advise that though tough, your stance should also remain civil and graceful least you get caught in the backfire of the forces of both A and B.

But, since you are not in the house, there are Statute of Warranty considerations that you should also be considering vis-a-vis your prospective seller. Good Luck!

In WA the elements of adverse possession are open and notorious, actual and exclusive hostile and under claim of right for the statutory period. Travelling across the land of another cannot be exclusive and actual. It might be open and notorious, but it cannot be hostile if there is consent to the use of the travelled path.

That is why I said this is not an adverse possession question. Because it isn't. One cannot adversely possess a road across somebody else's property. it isn't actual and exclusive use.

Powell

I'm not so certain that there is not an adverse possession claim. Under the law of ‘adverse possession’ a person whose name is not on the deed to property can actually acquire legal title by doing certain things. They must openly, continuously, exclusively, adversely and notoriously use the land for a period of time stated in each jurisdiction, then they own it. Boiling down volumes and volumes of legal materials on this ancient but still valid concept, the adverse possessor’s use of the land must be obvious and open, such that the true owner would be on notice. And if, during the statutory period of time required to ripen this claim the true owner takes action to stop the adverse possessor, then the clock starts to run again. Typical cases involve fences or other border markings that are put in the wrong place, and the property owner whose rights are violated does nothing for the period of time set out in that state’s law. They lose their land.

WIth either an adverse possession claim or a proscriptive easement there would be absolutely nothing on record in the chain of title. You will save yourself a great deal of money, time and trouble in the long run to retain an attorney now, before even considering this property, to review all of the facts and circumstances.

Do not even think about buying this property without checking it out.

I truly wish you the best.

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Based on the facts that you present this is not adverse possession, but it is at minimum a prescriptive easement. A prescriptve easement means there is no formal easement in the county records. You'll want to have a title company search the records carefully to see if there was ever any litigation or a recorded easement. You'll want to discuss with a local real estate attorney to see if there is any record of what the owner of the dominant parcel has indicated that they want to do with the parcel in back and if there is any other access to the parcel in back.

The thing to remember about owning a servient estate (the parcel you are proposing to purchase) is that the owner or tenant of the dominant estate gets to access their property across yours. This is usually fine if it is a couple of passenger cars, but when it turns into a parade of logging trucks there tends to be a problem. You cannot block the dominant parcel's access and your control is limited. Creating an easement that is defined and recorded can save a lot of heartache in the long run.

Normally a LPO can handle a real estate closing transaction, but in this situation I would strongly recommend that you have this reviewed by a real estate attorney.

Hope this helps. Elizabeth Powell