DIR Return Create A Forum - Home
---------------------------------------------------------
Kanagaroo Kort
HTML https://kangarookort.createaforum.com
---------------------------------------------------------
*****************************************************
DIR Return to: Property
*****************************************************
#Post#: 19--------------------------------------------------
Howard v. Kunto
By: kangaroo Date: January 26, 2011, 6:14 pm
---------------------------------------------------------
FACTS: As long ago as 1932, it is known that McCall resided in
the house not occupied by the defendant Kunto, McCall’s deed
described a 50 foot wide parcel of land on the shore of the Hood
Canal. There is an error however, in that the 50 feet described
in the deed is not the same 50 feet upon which McCall’s house
stood. The described land is the land adjacent to the 50 foot
lot directly west of where the house stood. Over the years, the
house became used as a summer home. The Kuntos took possession
from the Millers in 1959. In 1960, Howard who held land east
of that of the Kuntos, conveyed an undivided one-half interest
in their land to the Yearlys. To this end, they had a survey of
the land conducted only to learn that the deed descriptions and
the land occupancy of the parties did not coincide. When the
survey was complete, the Howards learned that they were the
record owners of the land occupied by the Moyers and the Moyers
held the record title to the land occupied by the Kuntos.
Howard approached Moyer and in return for a conveyance of the
land upon which the Moyer’s house stood, Moyer conveyed to
Howards record title to the land upon which the Kunto house
stood. The action was then instituted to quiet title in the
Howards and Yearlys.
-
-
PROCEDURAL FACTS:
-
claim of adverse possession

uninterrupted for the full statutory period (only been there for
about 1 ½ years)

not making continuous use of the property
o
as the true owner would (in the summer)
-
with directions to dismiss the plaintiffs’ action and to enter a
decree quieting defendant’s title to the disputed tract of land
in accordance with the prayer of their cross-complaint.
Tacking can mean adding territory (generically refers to tacking
time)
In a spatial sense, the court’s problem is that adverse
possession must include possession. In this case, his deed
doesn’t describe ANY of the property that is possessed. Kunto
did not possess ANY of the title.
Court looks @ several concepts:
-
-
-
trespass)precondition for tacking
Kunto bought his property in good faith from owners who believed
that they were selling their titles in good faith, so there is
no trespass (defective deed is good enough/don’t need to possess
any of the property if the transfer represents a voluntary
transfer)
Concept of Privity of Estate: Becomes more generic/court
broadens privity of estate, if the transfer has been voluntary
and in good faith.
Under the premise of tacking: If the adverse claimant stays on
the premise long enough, the extra land is tacked onto the deed.
Privity of estateVoluntary transfer from one claimant to
the next; point is to defeat a succession of trespasses.
Adverse possession claim begins when the cause of action
accrues…then it runs for the limitation period; claimants A, B,
& C can tack their times together. By the time the statute of
limitations ends, the tacked lands comes into possession of the
claimant/
Disability & Tolling For 21 year period, if the true
owner is a minority (under 18) or if the true owner is of
unsound mind
-
TOLLING FOR SUBSEQUENT DISABILITIES…EX: IF TRUE OWNER WAS A
MINORITY AT THE TIME THE CLAIM ACCRUES AND WHEN HE TURNS 18 AND
THE DISABILITY IS REMOVED, HE GOES INSANE: NO TOLLING FOR
INSANITY)
-
THE TIME THE CLAIM OF ACTION ACCRUES, YOU GET THE LONGER OF THE
TWO
-
-
disability ends plus 10 years (whichever is longer)
ADVERSE POSSESSION—REQUIREMENTS
4 QUESTIONS:
(1) WHEN DID CLAIM OF ACTION FIRST ACCRUE?
(2) DOES TACKING APPLY—TO EXTEND ADVERSE USE?
(3) DOES TOLLING APPLY TO SUSPEND THE STATUTE OF LIMITATIONS?
(4) WHEN DID CLAIM OF ACTION EXPIRE?
ISSUE:
(1)
use of the premises is restricted to summer occupancy?
(2)
mistaken belief that he has title to tract B, for the purpose of
establishing title to tract B by adverse possession, use the
periods of possession of tract B by his immediate predecessors
who also had record title to tract A?
RULES:
-
possession with is uninterrupted, open and notorious, hostile
and exclusive, and under a claim of right made in good faith for
the statutory period. (p. 139).
-
is used regularly for only a certain period each year (p. 139)
-
the premises continually. If the land is occupied during the
period of time during the year it is capable of use, there is
sufficient continuity. (p. 139)
-
that tacking of adverse possession is permitted if the
successive occupants are in privity. (p. 140)
ANALYSIS:
-
more than a 10 year period by the defendant and his predecessors
constituted ‘uninterrupted’ possession within this rule
-
thus establish adverse possession as a matter of law.
CONCLUSION: There is sufficient evidence to show the
defendant’s right to title as a result of adverse possession.
Therefore, the decision of the trial court should be reversed
*****************************************************