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Howard v. Kunto, Court of Appeals of WA, 1970 1) is AP defeated because the land is occupied 100% of the time (only summer occupancy)? Issue 2) Is tacking1 of AP allowed when a person mistakenly occupies land B immediately adjacent to land A described on his title? Reasoning Rule
AP requires: Exclusive, continuous (uninterrupted), open & notorious, hostile. AP requires such possession as ordinarily marks the conduct of owners in general in holding, managing, and caring for property of like nature and condition. Continuity is established provided there is no break as to sever 2 possessions. The rule is that ‘tacking (of more land) is allowed when successive occupants are in privity2. The deed running between the parties satisfies the privity to connect successive occupants. No Reason to differentiate more land from different land for equity reasons C: B: D: Kunto’s house; Moyer’s House;
Facts
Moyer’s deed Howard’s deed (A&B) Kunto’s deed
To hold otherwise, the nature of the property, as summer home, would be ignored.
Tacking allowed when: Received title for A when mistakenly believing acquiring title for B A and B are immediately contiguous B is transferred and occupied continuously o This establishes privity
This situation was the result of wrong surveys. The latter of witch was done in 1946. The error was discovered in 1960 when Howard had the land surveyed. Moyer and Howard swapped. So, C: Howard’s deed Kunto had been living there for less than 1 yr but was continuously lived on since 1932 (McCall then Miller). The house on C was used as a summer house.
Held Procedure P argues D argues
1 2
Kunto’s occupancy constituted uninterrupted possession. (otherwise, the nature of the property, as summer home, would be ignored) ∏’s action dismissed. Decree to quiet ∆’s title. Howard brought a quiet title3 action on C. Remedy granted to Howard because Kunto failed to prove Continuous possession (because it was just summer occupancy); court did not allow tacking of the adverse possession (because the deed did not described any of land occupied – case law was that tacking allowed when MORE land is claimed not completely different land). Kunto appealed.
AP use by his predecessors privity: n. contact, connection or mutual interest between parties. A tenant of a buyer of real property cannot sue the former owner (seller) of the property for failure to make repairs guaranteed by the land sales contract between seller and buyer since the tenant was not "in privity" with the seller. 3 quiet title action: n. a lawsuit to establish a party's title to real property against anyone and everyone, and thus "quiet" any challenges or claims to the title. Such a suit usually arises when there is some question about clear title, there exists some recorded problem (such as an old lease or failure to clear title after payment of a mortgage), an error in description which casts doubt on the amount of property owned, or an easement used for years without a recorded description.
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