[WSBAPT] SOL

[Eric Nelsen]

So Estate of deceased Daughter #1 is suing the living Daughter #2 for half the taxes, is that right?

It sounds like D1 and D2 were equal tenants in common on the property. Under that circumstance, I think the answer to your question is "yes and no." D1 as a co-tenant has a right to sue for equitable reimbursement of payment of more than D1's share of common expenses. That direct right of suit is subject to a 3-year SOL. HOWEVER there is a distinction that can be made between a co-owner's right to sue a cotenant directly for equitable reimbursement, versus the right to an accounting in a partition action. Though the purpose of both is to recover for funds expended, the direct cause of action against other co-owners is subject to the three-year statute of limitations, and cannot be recovered in that manner if barred by the statute. However, the right to assert a credit in a partition/accounting is an equitable defense or set off, which might not be barred by the statute of limitations. The case law isn't the clearest, and there is plenty of room to argue.

Possibly helpful authority:

A statute of limitations bars an action, but does not extinguish an affirmative defense arising out of the same facts, even if that affirmative action could also have been pursued as a direct claim. Seattle First Natl. Bank v. Siebol, 64 Wn.App. 401, 824 P.2d 1252 (1992). Therefore, a stale claim relating to the same matter can be asserted as set-off even if it can't be pursued directly to judgment.

Re partition and accounting, see:
Yakavonis v. Tilton, 93 Wn.App. 304, 968 P.2d 908 (1998)
Cummings v. Anderson, 94 Wn.2d 135, 145, 614 P.2d 1283 (1980)
Fulton v. Fulton, 57 Wn.2d 331, 334-35, 357 P.2d 169 (1960)
McKnight v. Basilides, 19 Wash.2d 391, 407, 143 P.2d 307 (1943)

I'd start with Yakavonis because it discusses all the other cases. Most of the argument there concerns ouster and a cotenant's duty (or lack thereof) to pay rent to other cotenants, but issues of accounting and offset are generally addressed in some fashion as well, and the question of how far back those claims can run.

I also have an old set of Am.Jur.2d, so you might check the current version on Cotenancy and Joint Ownership. My volume's helpful information is 20 Am.Jur.2d Cotenancy and Joint Ownership, Sections 104-108 (1965). It cites McKnight and some non-WA cases when discussing the proposition that a partition accounting reaches claims otherwise time-barred by SOL.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Mary Stone
Sent: Tuesday, May 28, 2019 5:09 PM
To: 'WSBA Probate & Trust Listserv'
Subject: [WSBAPT] SOL


Mother deeds property to two daughters in 1980.  Daughter #1 pays taxes and accepts rent from 1980 to 2011, when she dies.  Daughter #1's daughter is PR and is seeking ½ back taxes from 1980 through 2011.  In 2019, PR files suit for said ½ taxes from 1980 to 2011.  Is she time barred?

Thanks.

Mary Stone
Friday Harbor
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