 IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON

JEFFREY T. ROWE and               )
REBECCA L. ROWE, husband and      )            No. 74724-0-1
wife and the marital community    )
comprised thereof,                )
                                  )            DIVISION ONE
                     Respondents, )
                                  )
              v.                  )
                                  )
JOEL K. KLEIN and KAREN L. KLEIN, )
husband and wife and the marital  )
community comprised thereof,      )
                                  )
                     Defendants.  )
                                  )
JEFFREY T. ROWE and               )
REBECCA L. ROWE, husband and      )
wife and the marital community    )
comprised thereof,                )
                                  )
                     Respondents, )
                                  )
              v.                  )
                                  )
TRENT R. ADAMS and                )           PUBLISHED OPINION
MELISSA J. ADAMS, husband and     )
wife and the marital community    )
comprised thereof,                )
                                  )
                     Petitioners, )
                                  )            FILED: January 29, 2018

      SPEARMAN, J. — A statutory warranty deed includes both present and future
covenants. The present covenants guarantee conditions at the time the deed is

executed. These covenants are breached, if at all, at conveyance. The future
No. 74724-0-1/2

covenants protect a buyer's future right to the land. These covenants are generally

breached after conveyance, when a third party asserts a claim to the property.

          Jeffrey and Rebecca Rowe(Rowe) bought property from Trent and Melissa

Adams(Adams) via statutory warranty deed in 2008. In 2014, a neighbor, Klein,

sought to quiet title in a portion of the property by adverse possession. Six years and

three months after Rowe bought the land, he sued Adams for breach of warranties

and covenants. Adams moved to dismiss on the theory that Rowe's claims were

barred by the six year statute of limitations. The trial court denied Adams' motion to

dismiss but certified for review, the question of when the statute of limitations began

to run.

          The statute of limitations on the covenant of seisin, a present covenant,

began to run at conveyance, because a present covenant, if breached at all, is

breached at the time of conveyance.' The statute of limitations on the warranty to

defend, a future covenant, began to run when Adams refused Rowe's tender of

defense. The statute of limitations on the warranty of quiet possession, the other

future covenant, began to run when Rowe was actually or constructively evicted

from the land claimed by Klein.

          The trial court erred in denying Adams' motion to dismiss as to the present

covenants. The trial court did not err in denying Adams' motion to dismiss the claim


         1The warranty against encumbrances is also a present covenant which is breached, if at all,
at the time it is made. Ensberc v. Nelson, 178 Wn. App. 879, 886, 320 P.3d 97(2013)(citing Moore v.
Gillingham, 22 Wn.2d 655, 661, 157 P.2d 598 (1945)). This warranty guarantees that no third party
has a right to, or interest in, the real property such as a lien or easement. Id. at 887 (citing Hebb v.
Severson, 32 Wn.2d 159, 167, 201 P.2d 156 (1948)).
          Neither party addresses the warranty against encumbrances. Any cause of action for breach
of this warranty accrued at conveyance and was time barred when Rowe filed his complaint.



                                                   2
No. 74724-0-1/3

for breach of the warranty to defend. As to the warranty of quiet possession, the trial

court did not err in denying Adams' motion to dismiss except as to that portion of the

land occupied by Klein's greenhouse at the time of conveyance.

                                        FACTS

       Rowe bought lot 4 from Adams in August 2008 by statutory warranty deed.

Lot 4 is adjacent to and south of lot 3, the Klein property. The boundary between lots

3 and 4 is about 140 feet long and runs from east to west.

      'The 10 foot strip on the northern boundary of lot 4 has patches of grass,

cedar trees, rhododendrons, and blackberry bushes. Part of the area is a leach field

for a septic system. Towards the front of the lots, a crushed rock parking strip on lot

3 abuts the surveyed boundary line. At the back of the lots, a greenhouse on lot 3

extends over the property line. About 10 feet south of the boundary, on lot 4, a chain

link fence runs from east to west for about 30 feet. The fence is attached to Rowe's

back porch. Rowe believed the fence was part of a previous owner's dog run.

       Rowe had lot 4 surveyed in 2010. The survey showed that Klein's

greenhouse encroached onto lot 4. Klein's parking strip was on lot 3, but vehicles

parked on the strip encroached a few feet onto Rowe's property.

       Rowe intended to terrace the northern boundary of lot 4 and began this work

in 2013. Klein objected. Klein asserted that he had maintained the northern 10 feet

of lot 4 as his own since buying lot 3 in 1974. Klein contended the chain link fence

marked the property line.

       In 2014, Rowe filed a complaint to eject Klein and quiet title. Klein

counterclaimed for adverse possession. Klein asserted that he had exclusively


                                           3
No. 74724-0-1/4

possessed and maintained the property from 1974 to 1984 and had thus acquired

the land by adverse possession before either Adams or Rowe bought lot 4. Because

his claim to the property was based on his possession from 1974 to 1984, Klein

argued that he had no burden to show that he continued to hold the property after

1984 and any evidence of how the property was used after 1984 was irrelevant. The

trial court granted Klein's motion for summary judgment and quieted title in him.

         In July 2014, while the action with Klein was in progress, Rowe tendered

defense of Klein's adverse possession claim to Adams. Adams did not respond and

in December 2014, Rowe filed a third party complaint asserting breach of the

covenants of seisin, encumbrances, quiet possession, and the covenant to defend.

         Adams moved to dismiss under CR 12(c), asserting that Rowe's claims were

time barred. Adams contended the statute of limitations on the covenants in the

warranty deed began to run at conveyance. Rowe opposed the motion and asserted

that the statute of limitations did not begin to run until Klein established paramount

title.

         Although Adams' motion to dismiss presented a purely legal issue, the court

recited the underlying facts for context. The court stated that, at the time of

conveyance, neither Adams nor Rowe was aware that Klein had adversely

possessed a portion of lot 4. The court ruled that the statute of limitations did not

begin to run until Klein perfected title in the disputed land and, thus, Rowe's claims

were not time barred. The court denied Adams' motion to dismiss.




                                           4
No. 74724-0-1/5

       The trial court denied Adams' motion for reconsideration but granted his

motion to certify the question of when the statute of limitations began to run. This

court granted discretionary review.

                                      DISCUSSION

       The question before us is when the statute of limitations for breaches of the

warranties in a statutory deed begins to run. Certified questions are questions of law

that we review de novo. Allen v. Dameron, 187 Wn.2d 692, 701, 389 P.3d 487

(2017). We also review the trial court's ruling on a motion to dismiss de novo. Cutler

v. Phillips Petroleum Co., 124 Wn.2d 749, 755, 881 P.2d 216 (1994). A motion to

dismiss should only be granted "if it appears beyond a reasonable doubt that no

facts exist that would justify recovery." Id. This is the case when "'there is some

insuperable bar to relief." Id. (quoting Hoffer v. State, 110 Wn.2d 415, 420, 755 P.2d

781 (1988)).

       The statute of limitations begins to run when a cause of action accrues. 1000

Virginia Ltd. Partnership v. Vertecs Corp., 158 Wn.2d 566, 575, 146 P.3d 423(2006)

(citing RCW 4.16.005). A Cause of action accrues when a party has the right to apply

to a court for relief. Id. Claims for breach of a statutory warranty accrue when the

warranty is breached. Erickson v. Chase, 156 Wn. App. 151, 157, 231 P.3d 1261

(2010)(citing Whatcom Timber Co. v. Wright, 102 Wash. 566, 568, 173 P. 724

(1918)).

       A statutory warranty deed provides five guarantees against title defects:

       '(1) that the grantor was seised of an estate in fee simple (warranty of
       seisin);(2) that he had a good right to convey that estate (warranty of
       right to convey);(3) that title was free of encumbrances (warranty


                                           5
No. 74724-0-1/6

       against encumbrances);(4)that the grantee, his heirs and assigns, will
       have quiet possession (warranty of quiet possession); and (5)that the
       grantor will defend the grantee's title (warranty to defend).'

Mastro v. Kumakichi Corp., 90 Wn. App. 157, 162, 951 P.2d 817(1998)(quoting 17

WILLIAM B. STOEBUCK, WASHINGTON PRACTICE, REAL ESTATE: PROPERTY LAW § 7.2, at

447 (1995)). Rowe's complaint asserted that Adams breached each of these except

the warranty of right to convey.

       Rowe first asserts that Adams breached the warranty of seisin. The warranty

of seisin is also known as the covenant of ownership in fee simple. Double L.

Properties, Inc., v. Crandall, 51 Wn. App. 149, 152, 751 P.2d 1208(1988)(citing

Whatcom Timber, 102 Wash. at 567). This covenant guarantees that the grantor is

lawfully seized of an indefeasible estate in fee simple in the described property. Id.

at 152 (citing RCW 64.04.030). The warranty of seisin is a present covenant and is

broken the moment it is made if the grantor does not have the possession, right of

possession, and complete legal title of the property. Id. A grantor has possession if

he claims the right of exclusive occupation and no third party opposing his claim is

occupying the land. Id. at 153 (citing 1 H. Tiffany, Real Property § 20, at 27(3d ed.

1939)). See also Mastro, 90 Wn. App. at 163(discussing the warranty of seisin).

       This warranty was at issue in Double L. Properties. In that case, at the time

the seller conveyed acreage to the buyer, a neighbor was occupying about 10 acres

of the property. Double L. Properties, 51 Wn. App. at 150. The buyer successfully

ejected the neighbor and brought an action against the seller for indemnification. Id.

As to the warranty of seisin, the issue was whether a seller breaches the warranty




                                           6
No. 74724-0-1/7

when a third party asserts a claim to the property or only when a third party asserts a

valid claim that actually affects title. Id. at 152-53.

       In the circumstances of Double L. Properties, that question was resolved by

possession. Id. at 156. The warranty of seisin guarantees that the seller has

possession of the land, that is, that he claims the right of exclusive occupation and

no third party opposing his claim is occupying the land. Id. at 153. Where, as in

Double L. Properties, a third party is occupying the land at the time of sale "the

covenant of seisin is broken no matter whether the claim is lawful or unlawful." Id. at

156 (citing Lakelands, Inc., v. Chippewa & Flambeau Improvement Co., 237 Wis.

326, 295 N.W. 919, 926 (1941)).

       Relying on Double L. Properties, Adams asserts that the warranty of seisin

was breached at conveyance, the statute of limitations began to run at that time, and

Rowe's claim was time barred.

       Rowe attempts to distinguish Double L. Properties on the grounds that Klein's

possession at the time of conveyance was not evident. Rowe contends that, when

he bought lot 4, he asserted possession of the entire lot and his possession was not

disturbed until Klein asserted his adverse claim in 2014.

       Rowe's argument fails because the warranty of seisin guarantees that, at

conveyance, the seller has possession, right of possession, and complete legal title

to the property. Double L. Properties, 51 Wn. App. at 153. In Double L. Properties,

the warranty was breached because, at conveyance, a third party was occupying a

portion of the property, so that the seller did not have possession. In this case, Klein

established superior title to the disputed land through adverse possession from 1974


                                              7
No. 74724-0-1/8

to 1984. Thus, regardless of occupation at the time Adams conveyed lot 4 to Rowe

in 2008, Adams did not have complete legal title. The warranty of seisin was

breached at conveyance and the statute of limitations began to run at that time.

       Unlike the warranty of seisin and the warranty against encumbrances, the

warranty of quiet possession is a future covenant that runs with the land. McDonald

v. Ward, 99 Wash. 354, 358, 169 P. 851 (1918)(citing West Coast Mfp. & Inv. Co. v.

West Coast Improvement Co., 25 Wash. 627, 643,66 P. 97 1901). The warranty of

quiet possession is alternatively known as the warranty of quiet enjoyment, the

covenant of warranty, or the general warranty. 18 WILLIAM B. STOEBUCK & JOHN W.

WEAVER,WASHINGTON PRACTICE, REAL ESTATE: PROPERTY LAW § 14.3 (2004). See

West Coast at 25 Wash. at 643(covenant of warranty and covenant of quiet

enjoyment are identical). This covenant "warrants to the grantee, his or her heirs and

assigns, the quiet and peaceable possession" of the property conveyed. RCW

64.04.030. It is an "assurance by the grantor that the grantee and the grantee's heirs

and assigns shall enjoy [the land] without interruption by virtue of paramount title,

and that they shall not, by force of a paramount title and that they shall not, by force

of a paramount title, be evicted from the land or deprived of its possession." Foley v.

Smith, 14 Wn. App. 285, 290-91, 539 P.2d 874 (1975)(citing 20 Am.Jur.2d

Covenants, Conditions, & Restrictions s 50 (1965)).

       The warranty of quiet possession is breached when the buyer of land is

actually or constructively evicted by one who holds a paramount title that existed at

the time of the conveyance. Id. at 291. What constitutes evidence of actual or

constructive eviction varies according to the circumstances. Id. (citing West Coast


                                           8
No. 74724-0-1/9

Mfg., 25 Wash. at 643). Where a third party with superior title is in possession at the

time of conveyance so that the buyer cannot take possession, the buyer is

constructively evicted at conveyance. McDonald, 99 Wash. at 358-59 (buyer was

constructively evicted from land occupied by a railroad track at conveyance).

       The Washington Supreme Court considered the warranty of quiet possession

in two cases decided in 1918. In McDonald, a buyer bought land that included a

stretch of railroad track. McDonald, 99 Wash. at 354-55. A line of telegraph poles

ran parallel to the track at a distance of about 40 feet. Id. at 359. For several years,

the buyer cultivated all of the land except for a strip about 20 feet wide where the

track was located. Id. at 355. The railroad later asserted superior title to a strip of

land 200 feet wide. Id.

       In the buyer's action against the seller for breach of warranty, the statute of

limitations was at issue. Id. To determine when the limitations period began to run,

the McDonald court considered when the buyer was evicted from various portions of

the property. Id. at 358. The buyer conceded that he had been constructively evicted

from the 20 foot strip where the track was located at the time of conveyance. Id. at

358-59. The McDonald court held that the buyer had also been constructively

evicted from the land between the telegraph poles and the track at conveyance. Id.

at 359. Although the buyer had cultivated this land, the telegraph line was incidental

to the railroad track and essential to the track's operation. Id. The railroad possessed

the track, the telegraph poles, and the land between them. Id. As to the remaining

land, the buyer was not evicted until the railroad asserted its title. Id. The buyer's




                                            9
No. 74724-0-1/10

claim against the seller was limited to damages for the loss of this last portion of

land. Id.

       A few months after McDonald, the Supreme Court revisited the warranty of

quiet possession in Whatcom Timber. In that case, the seller conveyed two tracts of

land to the buyer by warranty deed. Whatcom Timber, 102 Wash. at 566-67. The

seller did not actually own the land. Id. at 568. At the time of conveyance, the land

was owned by the United States and was in the possession of third parties. .
                                                                           jçj. at

567. These third parties prevented the buyer, whose deed was null, from taking

possession. Id. at 568. Several years later, the third parties prevailed in actions to

quiet title. Id. at 567.

       In the later action against the seller for breach of the warranty of quiet

possession, the issue was when the statute of limitations began to run. Id. at 568. In

the circumstances of that case, where third parties with paramount title prevented

the buyer from taking possession, the Whatcom Timber court held that the warranty

was breached at conveyance. Id. "If, at the time the deed is executed the premises

are in the possession of third persons claiming under a superior title and grantee

cannot be put into possession, the covenant of warranty is broken when made,

without any further acts of the parties." Id.

       Adams contends this case is like Whatcom Timber. He asserts that Klein had

paramount title to the disputed land and Klein's possession of the land was beyond

dispute. Rowe contends that he asserted possession of the entire lot at conveyance

and his possession was not disturbed until Klein asserted his adverse claim in 2014.




                                            10
No. 74724-0-1/11

       Klein prevailed in his adverse possession claim. It has thus been established

that Klein had paramount title. But the trial court's order quieting title in Klein does

not establish that Klein occupied the disputed land in 2008 and prevented Rowe

from taking possession. Klein's adverse possession claim expressly rested on his

occupation of the land from 1974 to 1984. In support of his motion for summary

judgment, Klein argued that he was not required to continue to hold the property in

an adverse manner after 1984. Thus, Klein argued, any evidence relating to use of

the land after 1984 was irrelevant. By granting Klein's motion for summary judgment,

the trial court accepted Klein's argument. The court did not rule on whether Klein

occupied the land in 2008. Notably, the trial court stated that, at conveyance in 2008,

neither Adams nor Rowe was aware of Klein's adverse possession.

       In determining when the statute of limitations on Rowe's claim for breach of

the warranty of quiet possession commenced, the dispositive question is whether,

when Adams conveyed lot 4 to Rowe in 2008, Klein possessed the disputed land so

that Rowe was unable to take possession. Whatcom Timber provides no guidance

because, in that case, possession sufficient to exclude the buyer was undisputed.

McDonald, however, is instructive.

       In McDonald, the court considered when the buyer was ejected from the

disputed property for purposes of commencing the statute of limitations. McDonald,

99 Wash. at 358-59. The court appears to have taken into account the extent to

which it was apparent to a reasonable person that the property was occupied by the

railroad company. Id. at 359. The buyer, of course, could not dispute his knowledge

of the railroad's claim to the property occupied by the railroad track and conceded


                                            11
No. 74724-0-1/12

that the statute commenced at the time of conveyance as to that portion of the

property. Id. Accordingly, his claim as to that portion of the property was time barred.

Id.

       As to the disputed property, however, the court distinguished the property

between the track and the telegraph poles from the remaining property claimed by

the railroad. Id. It concluded that, as to the former, the buyer should be held, as a

matter of law, to have been evicted from the property from the time of conveyance.

Id. The court reasoned that because the telegraph line was incidental to the track of

the railway company, and was essential to the operation of the railroad, it would

have been readily apparent to a reasonable person that the property between the

track and the telegraph poles was occupied by the railroad. Id. Thus, the statute

commenced to run "at the time he received his deed." Id. But because there was no

similar indication that the railroad occupied the property beyond the telegraph poles,

the statute of limitations did not commence on that property until the railroad

company began legal action to oust the buyer. Id.

       In this case, Adams asserts that Klein's possession was evident. He first

relies on Klein's greenhouse, which encroached onto lot 4 at the time Rowe bought

the property. Like the railroad track in McDonald, Klein's greenhouse existed at the

time of conveyance and occupied a portion of the land so that the buyer could not

take possession. Rowe was constructively evicted from the land occupied by the

greenhouse at conveyance and the statute of limitations commenced to run at that

time. Thus, Rowe's claim as to this portion of the land is time barred.




                                           12
No. 74724-0-1/13

       Adams asserts, however, that Rowe was also constructively evicted from the

remainder of the land claimed by Klein. He contends Klein's possession of this land

was evident because Klein had the leach field inspected every few years, cars

parked on Klein's parking strip encroached over the property boundary, and Klein

stated that he maintained a lawn.

       Unlike the telegraph poles in McDonald, this evidence would not put a

reasonable person on notice of another party's superior claim. Telegraph poles are

permanent structures. The telegraph line was incidental to the railroad track and

essential to the railroad's operation. The occasional inspection of the leach field, the

parked cars, and the patches of lawn in this case are not permanent structures

incidental to some obvious use. The record indicates that, other than the

greenhouse, Klein's possession of the land was not such that Rowe was

constructively evicted at conveyance. Klein's position supports this conclusion. In his

adverse possession claim, Klein expressly declined to argue that he continued to

occupy the land after 1984. Notably, the trial court's finding that in 2008 neither

Adams nor Rowe was aware of Klein's adverse possession is consistent with this

position.

       We conclude that, although Klein's adverse possession from 1974 to 1984

established superior title to the land, his occupation of the land in 2008 was not such

that it prevented Rowe from taking occupation. Other than that land occupied by the

greenhouse, Rowe was not constructively evicted until Klein asserted his superior

title in 2014. Thus, as to the remainder of the disputed land, the limitations period did




                                           13
No. 74724-0-1/14

not begin to run until Klein asserted his superior claim in 2014. Rowe's claim is not

time barred.

       Rowe's final claim is for breach of the warranty to defend. Like the warranty of

quiet possession, the warranty to defend is a future warranty. Erickson, 156 Wn.

App. at 158 (citing Mastro, 90 Wn. App. at 164). It guarantees that no lawful,

outstanding claim against the property exists. Id. To establish breach of the warranty

and the right to recover, a buyer must show that(1) a third party has asserted a

superior right to the property;(2) the buyer has tendered defense to the seller; and

(3) the seller has refused the tender. Id. at 158-59. The breach occurs when the

seller refuses the tender of defense. Id. at 158; Mastro, 90 Wn. App. at 166 (the

seller breached the warranty by refusing tender of defense).

       Adams asserts, however, that the warranty to defend is breached at the same

time as the warranty of quiet enjoyment. At oral argument, he argued that the

warranty to defend is a subtype of the warranty of quiet possession. Adams'

argument rests on the McDonald court's statement that the warranty of quiet

possession, which the court refers to as the "general warranty," guarantees that the

"covenantor ... will defend and protect the covenantee against the rightful claims of

all persons." McDonald, 99 Wash. at 358 (quoting 7 Ruling Case Law, 1144).

       Adams takes this sentence out of context. The sentence is part of the

McDonald court's discussion of the warranty of quiet possession. The warranty to

defend was not at issue in that case. Where Washington courts have considered

breach of the warranty to defend, they have consistently held that the warranty is

breached when the seller refuses the buyer's tender of defense. See Edmonson v.


                                          14
No. 74724-0-1/15

Popchoi, 172 Wn.2d 272, 279, 256 P.3d 1223 (2011),("the warranty to defend

means that, upon proper tender, a grantor is obligated to defend in good faith and is

liable for breach of that duty."); Erickson, 156 Wn. App. at 158; Mastro, 90 Wn. App.

at 164-66.

       In this case, it is undisputed that Rowe tendered defense to Adams in 2014

and Adams refused to defend. The warranty to defend was breached in 2014. This

claim was not barred by the statute of limitations.

       To summarize, the statute of limitations began to run on the present

covenants, the covenant of seisin and the covenant against encumbrances, at

conveyance. Rowe's claims for breaches of those covenants were time barred. As to

these two claims, the trial court erred in denying Adams' motion to dismiss.

       The warranty Of quiet possession was breached when Rowe was actually or

constructively evicted. Rowe was evicted from that portion of the land occupied by

the greenhouse at conveyance, as Klein's possession prevented Rowe from taking

possession. As to that portion of the land, Rowe's claim was time barred and the trial

court erred in denying Adams' motion to dismiss. As to the remainder of the land,

Klein's possession was not such that it prevented Rowe from taking possession.

Other than the land occupied by the greenhouse, Rowe's claim for breach of the

warranty of quiet possession did not accrue until Klein asserted his superior claim in

2014. The claim was not time barred and the trial court properly denied Adams'

motion to dismiss.




                                          15
No. 74724-0-1/16

        The warranty to defend was breached when Adams refused Rowe's tender of

defense in 2014. This claim was not time barred and the trial court did not err in

denying Adams' motion to dismiss the claim.

         Reversed in part and affirmed in part.2



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        2 We deny Adams' request for attorney fees on appeal. Adams requests fees under the
doctrine of mutuality of remedy, which provides that, when one party would be entitled to receive
attorney fees if it prevails, the opposing party is likewise entitled to fees if it prevails. Fairway Estates
Ass'n of Apartment Owners v. Unknown Hens, Devisees of Young, 172 Wn. App. 168, 182, 289 P.3d
675(2012)(citing Kaintz v. PLG, Inc., 147 Wn. App. 782, 789, 197, P.3d 710(2008)). Adams
concedes, however, that attorney fees incurred in deed warranty litigation are not recoverable.
Because neither party is entitled to fees, the doctrine of mutuality of remedy is inapplicable.



                                                     16
