Citing equity, courts can take your property

The Huntingtons built their house, well and garage on Noel Proctor’s property. Instead of having the property surveyed prior to building, the Huntingtons mistakenly believed that a survey pin marked the corner of their property. It didn’t, it was actually 400 feet from the true boundary, having been placed there by a prior property owner for purposes unrelated to the boundary.

Mr. Proctor also believed that the pin marked the boundary. Eight years after the Huntingtons built and moved into their home, Mr. Proctor discovered their error when he had his property surveyed.

Negotiations to resolve the issue were unsuccessful and Mr. Proctor sued the Huntingtons demanding that they remove the encroachments.

Adverse possession was not available; the Huntingtons had only been in their home for eight (not ten) years. The Huntington’s argued that they should be allowed to remain and that Mr. Proctor should be forced to sell one acre of land to them. The trial court agreed with them which a 5-4 sharply divided Washington Supreme Court affirmed.

Noel Proctor wanted an injunction ordering the removal of the structures. The Supreme Court noted that historically property rights were enforced without exception and ejectment was routinely granted. More recently, however, Courts had begun enunciating and enforcing a “liability rule” which would require an encroacher to pay damages in lieu of removing the encroachment. They cited Arnold v. Melani, 75 Wn.2d 143, 437 P.2d 800 (1968-69).

The Arnold test is met when the encroacher can establish the following:

(1) The encroacher did not simply take a calculated risk, act in bad faith, or negligently, willfully or indifferently when locating the encroaching structure; (2) the damage to the landowner was slight and the benefit of removal equally small; (3) there was ample remaining room for a structure suitable for the area and no real limitation on the property’s future use; (4) it is impractical to move the structure as built; and (5) there is an enormous disparity in resulting hardships.

The majority felt that the Huntingtons had met these elements. They rejected Proctor’s argument that the encroachment was not “slight.” (See requirement number two). Instead of looking at the nature of the encroachment, the majority reasoned that its relative weight must be compared to the property owner’s remaining land. In this case, Proctor had thirty acres. The encroachment (event though it was an acre) was only 1/30th of Mr. Proctor’s total land.

In a blistering dissent, Justice Sanders (and three others) disagreed with the majority. Their argument being that property rights are sacred and that there are bright line rules that must be followed to protect those rights. The majority is changing the law from one that elevates property ownership to a balancing of the equities.

While this case hardly should be used as a pretext to build first, ask questions later (and when you don’t like the answer look to the court to bail you out). It will be interesting to see how far the courts will go when using equitable balancing tests in real property disputes.

It is these types of cases that make predicting results difficult. Prior to this case one would have most likely assumed that if you discovered someone had built a house on your property (whether mistakenly or not) you could demand that they remove it. Not so anymore.

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