On February 13, 2020, the District of Columbia Court of Appeals issued an opinion which expressly declined to follow a troubling earlier decision regarding tacking in the context of adverse possession. The decision is significant because the Court clarified the confusing and contradictory prior decision, which muddied the adverse possession waters in Washington, D.C.
In Gan v. Van Buren Street Methodist Church, the Gans and the church owned adjacent properties with a driveway terminating on the border between the two properties. The church held record title to the driveway. The Gans’ predecessor-in-interest held a recorded easement over the driveway and, by no later than 2000, erected a fence preventing the church from gaining access. The deed to the Gans in 2008 described the easement but did not purport to either convey title to the driveway or an inchoate adverse possession interest in the driveway.
In support of their motion for summary judgment before the trial court, the Gans asserted they were entitled to tack their predecessor-in-interest’s period of adverse possession to meet the statutory 15-year period. The trial court relied upon the 2010 Sears v. Catholic Archdiocese case and rejected the Gans’ tacking argument. The Sears decision contradictorily held that a deed which fails to convey an inchoate adverse possession right is ineffective for tacking purposes and held that tacking is permitted unless it is established that the predecessor-in-interest did not intend to convey the disputed parcel.
The Gan Court first noted that Sears—which was decided only by a division of the Court of Appeals—did not mention the 1920 Brumbaugh v. Gompers case, which permitted tacking under broader circumstances and was binding on the Court of Appeals unless later overturned en banc, which it had not. The Court of Appeals took the opportunity to clarify the status of adverse possession law and expressly held in Gan that: (1) tacking is permissible even if the deed did not convey any ownership or interest in the disputed property; (2) tacking would be precluded if the deed disclaimed any transfer of any ownership or interest in the property; and, (3) tacking is permissible only if the claimant could establish through clear and convincing evidence that the processor-in-interest intended to surrender possession of the property to the claimant.
This decision clarifies a 10-year period during which the circumstances where tacking was permitted in Washington, D.C. were up for debate. The Court of Appeals’ decision should give guidance to drafters of contracts and deeds as well as help provide clarity in future litigation matters.
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