Adverse possession involving Green Belts

MarkM41 (Washington)
Posts: 8

Posted:

Good day, looking for feedback in regards to Homeowners pursuing adverse possession involving the HOA green belts. The property(s) are located in Washington state where certain homeowners have expanded their back yards (10+ years ago) by encroachment into the green belts. The homeowners are taking steps towards adverse possession. Does anyone have experience in this issue? I have read the Washington state

RCW 36.70A.165
Property designated as greenbelt or open space—Not subject to adverse possession.

But it appears this may apply to counties or city green belts and not to privately/HOA green belts?

Any assistance is greatly appreciated.

Thank you very much

HenryS6 (Arizona)
Posts: 111

Posted:

This would be a good question for your association attorney, but there is a law that says that the limitations on adverse possession also apply to homeowners associations. You will want to pull your plat and as long the plat map calls out the disputed property as green belt, you should be safe. But again, talk to your association attorney on this matter.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By MarkM41 on 10/21/2021 9:50 AM
Good day, looking for feedback in regards to Homeowners pursuing adverse possession involving the HOA green belts. The property(s) are located in Washington state where certain homeowners have expanded their back yards (10+ years ago) by encroachment into the green belts. The homeowners are taking steps towards adverse possession. Does anyone have experience in this issue? I have read the Washington state

RCW 36.70A.165
Property designated as greenbelt or open space—Not subject to adverse possession.

But it appears this may apply to counties or city green belts and not to privately/HOA green belts?

First, I trust you are asking here to help prepare for a meeting with an attorney. Because your HOA will need an attorney if these folks attempt to take title by adverse possession.

Second, I am reading here https://app.leg.wa.gov/rcw/default.aspx?cite=36.70A.165. It says:
RCW 36.70A.165
Property designated as greenbelt or open space—Not subject to adverse possession.
The legislature recognizes that the preservation of urban greenbelts is an integral part of comprehensive growth management in Washington. The legislature further recognizes that certain greenbelts are subject to adverse possession action which, if carried out, threaten the comprehensive nature of this chapter. Therefore, a party shall not acquire by adverse possession property that is designated as a plat greenbelt or open space area or that is dedicated as open space to a public agency or to a bona fide homeowner's association.

I checked the definitions section and could not find a definition for "open space." This chapter section does have a definition of "open space": https://app.leg.wa.gov/RCW/default.aspx?cite=84.34.020.

Can you get a copy of the relevant plats and see whether perhaps they designate the land to be "open space"?

So far, I like your HOA's chances of defeating any adverse possession claim. But I am not an attorney. I have only a nodding acquaintance with the topic.

HenryS6 (Arizona)
Posts: 111

Posted:

Quote:

Posted By AugustinD on 10/21/2021 10:30 AM

Posted By MarkM41 on 10/21/2021 9:50 AM
Good day, looking for feedback in regards to Homeowners pursuing adverse possession involving the HOA green belts. The property(s) are located in Washington state where certain homeowners have expanded their back yards (10+ years ago) by encroachment into the green belts. The homeowners are taking steps towards adverse possession. Does anyone have experience in this issue? I have read the Washington state

RCW 36.70A.165
Property designated as greenbelt or open space—Not subject to adverse possession.

But it appears this may apply to counties or city green belts and not to privately/HOA green belts?

First, I trust you are asking here to help prepare for a meeting with an attorney. Because your HOA will need an attorney if these folks attempt to take title by adverse possession.

Second, I am reading here https://app.leg.wa.gov/rcw/default.aspx?cite=36.70A.165. It says:
RCW 36.70A.165
Property designated as greenbelt or open space—Not subject to adverse possession.
The legislature recognizes that the preservation of urban greenbelts is an integral part of comprehensive growth management in Washington. The legislature further recognizes that certain greenbelts are subject to adverse possession action which, if carried out, threaten the comprehensive nature of this chapter. Therefore, a party shall not acquire by adverse possession property that is designated as a plat greenbelt or open space area or that is dedicated as open space to a public agency or to a bona fide homeowner's association.

I checked the definitions section and could not find a definition for "open space." This chapter section does have a definition of "open space": https://app.leg.wa.gov/RCW/default.aspx?cite=84.34.020.

Can you get a copy of the relevant plats and see whether perhaps they designate the land to be "open space"?

So far, I like your HOA's chances of defeating any adverse possession claim. But I am not an attorney. I have only a nodding acquaintance with the topic.

Open Space or Greenbelt is designated as such on the plat map. For example "Tract 1D is designated open space land".

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Mark

Who owns this greenbelt land? One poster said it should appear on a Plat as such versus just having been called such by the HOA.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By HenryS6 on 10/21/2021 10:43 AM

Open Space or Greenbelt is designated as such on the plat map. For example "Tract 1D is designated open space land".

From the aforementioned site https://app.leg.wa.gov/RCW/default.aspx?cite=84.34.020:

Definitions.
The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
(1) "Open space land" means (a) any land area so designated by an official comprehensive land use plan adopted by any city or county and zoned accordingly, or (b) any land area, the preservation of which in its present use would (i) conserve and enhance natural or scenic resources, or (ii) protect streams or water supply, or (iii) promote conservation of soils, wetlands, beaches or tidal marshes, or (iv) enhance the value to the public of abutting or neighboring parks, forests, wildlife preserves, nature reservations or sanctuaries or other open space, or (v) enhance recreation opportunities, or (vi) preserve historic sites, or (vii) preserve visual quality along highway, road, and street corridors or scenic vistas, or (viii) retain in its natural state tracts of land not less than one acre situated in an urban area and open to public use on such conditions as may be reasonably required by the legislative body granting the open space classification, or (c) any land meeting the definition of farm and agricultural conservation land under subsection (8) of this section. As a condition of granting open space classification, the legislative body may not require public access on land classified under (b)(iii) of this subsection for the purpose of promoting conservation of wetlands.

MarkM41 (Washington)
Posts: 8

Posted:

Thank you all for the feedback, the plat map clearly states green belt areas and common space (Paris, pools, golf course, club house, tennis courts) the owners are hanging their hat on that the specific RCW is under the RCW section is specific for cities and counties. They will be filing suit, the HOA attorney seems to think this is incorrect. We are talking about $20,000 minimum in costs to the HOA for attorney fees. It is entirely out of hand. Looking for input to minimize losses on both sides… a community that is divided…

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By MarkM41 on 10/21/2021 6:22 PM
Thank you all for the feedback, the plat map clearly states green belt areas and common space (Paris, pools, golf course, club house, tennis courts) the owners are hanging their hat on that the specific RCW is under the RCW section is specific for cities and counties.

But the RCW you cited and I then quoted also specifically refers to HOAs. They're being darned fools.

Do your covenants say anything about attorney's fees being payable by the loser in a lawsuit?

MarkM41 (Washington)
Posts: 8

Posted:

Court costs snd fees can only be recovered by the Homeowner only if the Association files against the Homeowner.

However in a court case the winner nay ask the court for judgement against the loser for costs etc…

AugustinD
Posts: 3,698

Posted:

Mark, have you asked your insurer whether it will provide an attorney?

Also its possible adverse possession statutes in Washington say more about attorney fee awards. Do check.