[WSBAPT] SOL

[Mary Stone]

Wow – thank you everyone for your helpful responses.

 

Mary Stone

 

From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com>
On Behalf Of Eric Nelsen
Sent: Wednesday, May 29, 2019 11:20 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] SOL

 

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>
[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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