Howard v. Kunto

Washington Court of Appeals · 1970 · Property

Propertyadverse possessiontackingprivityseasonal useadverse possessiontackingprivity of estate

Facts

For many years, defendants and their predecessors occupied a waterfront summer home on one 50-foot tract even though their deeds described the adjacent 50-foot tract immediately to the west. Since 1946, the same legal description was used in successive conveyances, but possession of the occupied tract was transferred each time to the next occupant. The occupied property was used as a summer recreational retreat, and improvements including a house and dock remained on the land. After a later survey revealed the mismatch between deed descriptions and actual occupancy, plaintiffs obtained record title to the tract occupied by defendants and sued to quiet title.

Issue

Whether adverse possession is defeated when the property is used only during the summer months, and whether a possessor of tract B may tack the possession of predecessors who also occupied tract B while holding record title only to the immediately contiguous tract A under the mistaken belief that they owned tract B.

Rule

Adverse possession requires actual possession that is uninterrupted, open and notorious, hostile and exclusive, and under a claim of right made in good faith for the statutory period. Possession is sufficiently continuous if it is the kind of possession owners ordinarily exercise over property of like nature and condition, so seasonal use of a summer property can satisfy continuity. Tacking is allowed when there is a reasonable connection or privity between successive occupants; sufficient privity exists where successive purchasers receive record title to tract A under the mistaken belief they are acquiring immediately contiguous tract B, and possession of tract B is transferred and occupied continuously for more than 10 years.

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In Traverse City, Michigan, Lena Ortiz and her predecessors have used a lake cottage on a disputed strip every May through September for 12 years. They leave the cottage, shed, and mooring posts in place all year, but no one stays there during the winter because the road is impassable and the property is ordinarily used only in warm months.

If the record owner sues to recover the strip, what is the strongest argument that Lena's possession was continuous for the statutory period?

Explanation. The governing rule is that possession is sufficiently continuous when it reflects the dominion ordinarily exercised by owners of property of like nature and condition. Seasonal use does not defeat continuity when the property is the sort ordinarily occupied only during a particular season, and the continuing presence of improvements reinforces uninterrupted possession.