Tacking – Adverse possession periods of two or more successive occupants may be

added together to meet the statutory period.

Howard (P) v. Kunto (D)

COA of Washington, 1970

Procedure:
An action was instituted to quiet title in the Howards and Yearlys. The trial court granted
this remedy holding the Kuntos failed to prove a continuity of possession or estate to
permit tacking of the adverse possession of defendants to the possession of their
predecessors. The Kuntos therefore appeal.
Facts:
At least as long ago as 1932 the Kuntos house was occupied. Since 1946, several
conveyances have occurred in this property. In 1959, the Kuntos took possession of the
disputed property under a deed from the Millers.
Issue:
1. Is tacking of possession by subsequent occupants permitted if the land is occupied
under a mistake of fact?
2. May a party prevail on a claim of adverse possession if physical use of the
property was limited to summer occupancy?
Analysis:
Generally, tacking of adverse possession is permitted if the successive occupants are in
privity. The deed running between the parties purporting to transfer the land possessed
traditionally furnishes the privity of estate which connects the possession of the
successive occupants.
The requirement of privity had its roots in the notion that a succession of trespasses
should not, in equity, be allowed to defeat the record title. There is though, a big
difference between the squatter/trespasser & property purchaser who as a result of an
inaccurate survey, occupies & improves property adjacent to that which a survey some 30
years later demonstrates that they in fact own.
The technical requirement of privity should not be used to upset the long periods of
occupancy of those who in good faith received an erroneous deed description.
Holding:
Summer occupancy only of a summer beach home does not destroy the continuity of
possession required by the statute. Therefore, occupancy during the 10 year period by
defendant and his predecessors, together with continued existence of improvements to the
land constitute “uninterrupted” possession.
Tacking of possession by subsequent occupants is permitted if the land is occupied under
mistake of fact provided the occupants are in privity (so long as possession was
continuous and the transfer of possession was in good faith).
Rule:
Requisite possession requires such possession and dominion “as ordinarily marks the
conduct of owners in general in holding, managing, and caring for property of like nature
and condition.”
Tacking is allowed when: (1) land is occupied under mistake of fact; (2) The property
mistaken to be yours is adjacent to that which is really yours; (3) The mistaken property
is transferred and occupied continuously (privity).
The requirement of privity is no more than judicial recognition of the need for some
reasonable connection between successive occupants of real property so as to raise their
claim of right above the status of the wrong doer or the trespasser.
Contentions:
Plaintiffs contend that where the deed does not describe any of the land which was
occupied, the actual transfer of possession is insufficient to establish privity.

Quiet Title – equitable action to resolve conflicting claims to an interest in real property.
Privity of estate – common or successive relation to the same right in property transferred
in good faith. Judicial recognition that successive occupants of real property should be
able to raise their claim of rights above the status of the wrongdoer or trespasser.