Virginia Lawyers Weekly VA Lawyers Weekly
In this adverse possession case, appellees’ exclusive 15-year possession of a disputed area was unaffected when they granted appellant, the adjoining landowner, permission to install a drainage pipe in the area.
Overview
In 1996, Tarek and Kye Abboushi, the appellees in this case, bought property adjacent to land (the Veldhuis property) owned by Joe Carroll. Nancy, Joe’s daughter is the appellant, and is Joe’s successor in interest. The Abboushis did not have a survey prepared when they bought their property.
Joe described the boundary line to Tarek as “‘a straight line’ running along the western edge of Joe’s driveway to the east side of a large pine tree at the back of the Abboushi Property. …
“According to Tarek, Joe identified the boundary line as running along the side of Joe’s driveway back to a pink azalea bush that Kye … planted in 1996. Tarek testified that from that point forward, the Abboushis began maintaining an area east of the line delineated by Joe (the ‘disputed area’).”
The Abboushis made various improvements to the disputed area. “According to both Kye and Tarek, neither Joe nor his wife ever objected to their planting, mowing, and maintenance of the disputed area.
“In fact, sometime before Joe passed away, he sought permission from Tarek and Kye to install a two-inch plastic underground pipe along the edge of his driveway in order to direct water away from Joe’s garage.
“Tarek and Kye granted him permission. … The pipe was buried under the ground along the edge of the driveway, somewhere under the stone wall. …
“Joe passed away in February 2009. After his death, Nancy inherited the Veldhuis property and she and John moved in in August 2009. …
“Nancy first objected to the Abboushis’ use of the disputed area by letter dated February 10, 2020.3
At trial, Nancy argued that the pipe installed by Joe was fatal to the Abboushis’ adverse possession claim, as the pipe negated the Abboushis’ exclusive possession of the disputed area.
“The trial court made three important findings in its letter opinion regarding the pipe: (1) the testimony was unclear as to whether the pipe was actually installed inside the disputed area; (2) the testimony was unclear as to exactly when the pipe was installed; and (3) regardless of when or where the pipe was installed, it was installed only with the permission of the Abboushis.
“Based on the evidence adduced at trial, the trial court found that the Abboushis had proven all the elements of their claim of adverse possession by clear and convincing evidence, including their exclusive possession of the disputed area.” Nancy appealed.
Analysis
“Nancy’s assignments of error all center on the trial court’s treatment of the pipe installed by Joe. Here, the fact that the Abboushis granted Joe permission to install the pipe in the disputed area is dispositive.
“Even assuming that the pipe was actually installed both (1) within the bounds of the disputed area and (2) prior to the Abboushis establishing their claim of right by adverse possession, the Abboushis would still prevail on their claim, as their exclusive possession of the disputed area was unaffected by the installation of the pipe. …
“Nancy only challenges the trial court’s finding that the Abboushis’ possession of the disputed area was exclusive. …
“Nancy argues that because Joe, her successor in interest and the rightful owner of the disputed area, installed the pipe within the bounds of the disputed area, the Abboushis’ possession of the disputed area was not exclusive.
“However, this argument misunderstands the ethos of an adverse possession claim. As the Supreme Court has stated on multiple occasions, the possession must be ‘under a claim of right and adverse to the right of the true owner.’ …
“The permission sought by Joe and granted by the Abboushis to install the pipe proves the Abboushis’ claim of right, as the act of granting another permission to use your property is a clear indication that the grantor views himself, and no other, as the rightful owner and possessor of the property.
“Furthermore, the act of seeking permission to install the pipe, as well as Joe’s initial delineation of the boundary line, supports the trial court’s conclusion that Joe also viewed the Abboushis as the rightful owners of the disputed area.
“The permission Joe sought in this case was more than a polite attempt to maintain the goodwill of a neighbor for work that Joe already intended to perform. Instead, the trial court found that the pipe was installed only with the permission of the Abboushis.
“Joe’s permissive use of the disputed area does not defeat the Abboushis’ claim of exclusive possession, as it is well within the right of the possessor of land to grant or deny access to the land as he or she sees fit.
“The operable question here is whether Joe used the land as the rightful owner; as his use as a licensee or invitee would not affect the Abboushis’ exclusive possession. It goes without saying that the rightful owner does not need to seek permission to use his own land.
“Joe’s act of seeking permission to use part of the disputed area not only fails to cast doubt on Abboushis’ claim of ownership, it strengthens it. …
“[T]here can be no question that Joe, the actual owner, ‘knew of, and acquiesced in,’ the claim of right that the Abboushis asserted over the disputed area. …The Abboushis’ right was more than just a “right held in common” with Joe, it was exclusive.”
Ruling
“Because Joe first sought and received the Abboushis’ permission, Joe’s permissive use of the disputed area did not defeat the Abboushis’ exclusive use of the disputed area.”
Affirmed.
Veldhuis v. Abboushi, Record No. 0776-22-4, May 9, 2023. CAV (published opinion) (Fulton III) From the Circuit Court of the City of Alexandria (Uston) John C. Altmiller for appellant. F. Andrew Carroll III for appellee. VLW 023-7-163, 12 pp.
