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       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

THE NEWPORT YACHT BASIN                     )
ASSOCIATION OF CONDOMINIUM                  )
OWNERS, an unincorporated                   )       No. 66318-6-I
condominium association,                    )       (Linked with No. 66319-4-I)
                                            )
              Appellant,                    )
                                            )
                   v.                       )
                                            )       PUBLISHED OPINION
SUPREME NORTHWEST, INC., a                  )
Washington corporation d/b/a                )
SEATTLE BOAT NEWPORT, and                   )
SEATTLE MARINE MANAGEMENT                   )
COMPANY, LLC, a Washington limited )
liability company,                          )
                                            )
              Respondents,                  )
                                            )
              and                           )
                                            )
BRIDGES INVESTMENT GROUP,                   )
LLC, a Washington limited liability         )
company, and DOUGLAS                        )
BURBRIDGE and MARGIE                        )
BURBRIDGE, husband and wife, and            )
Their marital community,                    )
                                            )
              Third-Party                   )
              Defendants,                   )
                                            )
CAROL RADOVICH, as Personal                 )
Representative of the Estate of John        )
Radovich, deceased, RUSSELL and             )
CONSTANCE KEYES,                            )
                                            )
              Fourth-Party Defendants.      )       FILED: May 7, 2012
________________________________)

       Dwyer, J.  --  Where the language of a recorded quitclaim deed  

No. 66318-6-I/2

unambiguously expresses the intent of the grantor to convey all of his or her 

interest in real property, extrinsic evidence may not be used to demonstrate an 

intent to convey some lesser interest.  Here, the Newport Yacht Basin 

Association of Condominium Owners (NYBA) appeals from the trial court's order 

denying its claim to quiet title to property described in a 1981 quitclaim deed.  

The trial court determined that the deed was not intended to convey fee simple 

title and that, even if this had been the intent of the parties, the deed was 

nevertheless unenforceable for a variety of legal and equitable reasons.  

However, because the language of the deed at issue unambiguously documents 

the intent of the grantors to convey fee title, the trial court erred by resorting to

extrinsic evidence in order to derive a finding of intent that contradicts the written 

words of the deed.  As the result of our review of this issue and other, ancillary, 

issues, we reverse in part and affirm in part.

                                            I

       In 2007, a commercial boat dealer, Supreme Northwest Inc. (doing 

business as Seattle Boat), purchased lakefront property (the commercial parcel) 

and an associated boat business for $4.15 million from Bridges Investment 

Group LLC (Bridges). After closing, Seattle Boat sought approval from the City 

of Bellevue to build a new storage and sales facility.  NYBA, an unincorporated 

condominium association that manages the marina adjacent to the commercial 

parcel, was initially supportive of Seattle Boat's redevelopment plans.  In the 

                                          - 2 - 

No. 66318-6-I/3

months following the sale, Alan Bohling, the president of Seattle Boat, and Kyle 

Anderson, the president of NYBA's board of directors, maintained an ongoing 

discussion of Seattle Boat's redevelopment plan and NYBA's resulting concerns 

regarding parking, ingress, egress, and traffic.  However, following the City's

issuance of a "declaration of nonsignificance" -- an important checkpoint in the 

approval process -- NYBA's membership voted overwhelmingly to oppose Seattle 

Boat's redevelopment project.  

       In June of 2008, NYBA retrieved from its safe a document entitled "Quit 

Claim Deed," which purported to convey three legally-described strips of the 
commercial parcel from its original owners, John Radovich1 and Russell Keyes, 

to NYBA in 1980.  The quitclaim deed had been properly recorded in 1981.  An 

accompanying real estate tax affidavit, signed by NYBA's then-vice president 

and filed with the quitclaim deed, described the deed as a "document in 

correction of easements."  Because the three strips of land described in the 

deed (designated as parcels A, B, and C) were located within the area that 

Seattle Boat was intending to redevelop, the permitting process was suspended 

until the validity of the quitclaim deed could be determined.  

       Both the commercial parcel and adjacent marina were previously owned 

by Radovich and Keyes.  The two partners acquired the marina, submerged 

lands, and uplands in 1975.  They converted the marina to condominium 

       1 John Radovich passed away in December 2011, prior to oral argument of this appeal. 
His wife, Carol Radovich, as personal representative of his estate, has been substituted as a 
party in this action.  In this opinion, we use the surname Radovich to refer either to Mr. Radovich
or his estate, as the context dictates.

                                          - 3 - 

No. 66318-6-I/4

property in 1978.  At this time, Radovich recorded a declaration of easements, 

which created ten easements on and around the commercial parcel and the 

newly formed NYBA property.  The legal descriptions of the boundaries of three 

of these easements -- easements 4, 5, and 6 -- are identical to the descriptions of 

the land that Radovich and Keyes later conveyed to NYBA in the 1981 quitclaim 

deed. 

       Following the creation of the condominium, Radovich and Keyes leased 

the upland commercial parcel to Douglas Burbridge, who thereafter operated a 

boat business, Mercer Marine, on the property.  In 1983, Burbridge agreed to 

purchase Keyes' one-half undivided interest in the commercial parcel.  Keyes 

conveyed his interest by statutory warranty deed in 1991.  In 2004, Burbridge

formed Bridges and conveyed his interest in the commercial parcel to this 

investment company.  In 2004, Bridges also purchased Radovich's one-half 

undivided interest in the commercial parcel.  Both the deed from Keyes to 

Burbridge and the deed from Radovich to Bridges included the land described in 

the 1981 quitclaim deed.  Similarly, when Bridges conveyed the commercial 

parcel to Seattle Boat by bargain and sale deed in March 2007, this deed also 

included the land that had been described in the 1981 quitclaim deed. 

       In September 2008, NYBA brought suit against Seattle Boat seeking a

declaratory judgment quieting title to the three strips of land described in the 

quitclaim deed.  It sought entry of a judgment declaring that the quitclaim deed 

                                          - 4 - 

No. 66318-6-I/5

either conveyed fee title to the property described therein or granted NYBA 

exclusive rights in that property.  Seattle Boat counterclaimed based on adverse 

possession and brought a third party complaint against Burbridge and Bridges 

for failure to convey good title to the entire commercial parcel.  Thereafter, 

Bridges brought a fourth party complaint against Radovich and Keyes for breach 

of their agreements to convey good title to the commercial parcel.    

       After a two-week bench trial, the trial court entered detailed findings of 

fact and conclusions of law in favor of Seattle Boat.  The court determined that 

the 1981 quitclaim deed was not intended to convey fee simple title and, in 

addition, that the deed was unenforceable on a variety of legal and equitable 

bases.

       NYBA appeals.

                                           II

       NYBA first contends that, because the 1981 quitclaim deed 

unambiguously expressed the intent of Radovich and Keyes to convey fee title to 

the three strips of land described in the deed, the trial court erred by concluding 

that the deed did not convey fee title.  We agree.

       In a bench trial where the trial court has weighed the evidence, our review 

is limited to determining whether substantial evidence supports the trial court's 

findings of fact and whether those findings support the court's conclusions of 

law. Standing Rock Homeowners Ass'n v. Misich, 106 Wn. App. 231, 242-43, 23 

                                          - 5 - 

No. 66318-6-I/6

P.3d 520 (2001). Substantial evidence is a quantum of evidence sufficient to 

persuade a rational fair-minded person that the premise is true.  Wenatchee 

Sportsmen Ass'n v. Chelan County, 141 Wn.2d 169, 176, 4 P.3d 123 (2000).  

We review questions of law and conclusions of law de novo.  Sunnyside Valley 

Irrigation Dist. v. Dickie, 149 Wn.2d 873, 880, 73 P.3d 369 (2003) (citing Veach

v. Culp, 92 Wn.2d 570, 573, 599 P.2d 526 (1979)).  

       "[D]eeds are construed to give effect to the intentions of the parties, and 

particular attention is given to the intent of the grantor when discerning the 

meaning of the entire document."  Zunino v. Rajewski, 140 Wn. App. 215, 222, 

165 P.3d 57 (2007). Interpretation of a deed is a mixed question of fact and law.  

Affiliated FM Ins. Co. v. LTK Consulting Servs., Inc., 170 Wn.2d 442, 459 n.7, 

243 P.3d 521 (2010).  What the parties intended is a question of fact and the 

legal consequence of that intent is a question of law.  Affiliated FM, 170 Wn.2d 

at 459 n.7.  

       In general, we determine the intent of the parties from the language of the 

deed as a whole.  Sunnyside Valley, 149 Wn.2d at 880 (citing Zobrist v. Culp, 95 

Wn.2d 556, 560, 627 P.2d 1308 (1981)).  "In the construction of a deed, a court 

must give meaning to every word if reasonably possible."  Hodgins v. State, 9 

Wn. App. 486, 492, 513 P.2d 304 (1973) (citing Fowler v. Tarbet, 45 Wn.2d 332, 

334, 274 P.2d 341 (1954)).  It has long been the rule of our state that, where the 

plain language of a deed is unambiguous, extrinsic evidence will not be 

                                          - 6 - 

No. 66318-6-I/7

considered.2  Sunnyside Valley, 149 Wn.2d at 880; In re Estate of Little, 106 

Wn.2d 269, 287, 721 P.2d 950 (1986); City of Seattle v. Nazarenus, 60 Wn.2d 

657, 665, 374 P.2d 1014 (1962); Tacoma Mill Co. v. N. Pac. Ry. Co., 89 Wash. 

187, 201, 154 P. 173 (1916) ("[I]f the intention of the parties may be clearly and 

certainly determined from the language they employ, recourse will not be had to 
extrinsic evidence for the purpose of ascertaining their intention.").3 This rule is 

a practical consequence of the permanent nature of real property -- unlike a 

contract for personal services or a sale of goods, the legal effect of a deed will

outlast the lifetimes of both grantor and grantee, ensuring that evidence of the 

circumstances surrounding the transfer will become both increasingly unreliable

and increasingly unobtainable with the passage of time. Accordingly, the 

language of the written instrument is the best evidence of the intent of the 

original parties to a deed.   

       Nevertheless, where ambiguity exists, extrinsic evidence may be 

considered in ascertaining the intentions of the parties.  Sunnyside Valley, 149 

       2 An exception to this general rule exists where the grantor of a quitclaim deed claims 
that the deed was given as an equitable mortgage.  See Gossett v. Farmers Ins. Co. of 
Wash., 133 Wn.2d 954, 966, 948 P.2d 1264 (1997); Pittwood v. Spokane Sav. & Loan Soc'y,
141 Wash. 229, 233, 251 P. 283 (1926). Because neither party contends that the quitclaim deed 
at issue was given as an equitable mortgage, this exception is not germane herein.
       3 As Professor Stoebuck has explained, "[o]ne does not need rules to interpret a 
document that is clear on its face, but only when it is in some way unclear."  17 William B. 
Stoebuck & John W. Weaver, Washington Practice: Real Estate: Property Law § 7.9, at 485 (2d 
ed. 2011).  This is also the approach of other jurisdictions.  "Where there is no ambiguity in the 
language used in a deed, the intention of the parties must be arrived at from such language,
giving it its common and accepted meaning."  23 Am. Jur. 2d Deeds § 194 (2012) (citations 
omitted); see, e.g., Peterson v. Barron, 401 S.W.2d 680, 685 (Tex. Civ. App. 1966) ("It is 
elementary, of course, that there must be some ambiguity in a deed before extrinsic evidence is 
admissible to vary the terms thereof.").

                                          - 7 - 

No. 66318-6-I/8

Wn.2d at 880.  In such a situation, we will consider the circumstances of the 

transaction and the subsequent conduct of the parties in determining their intent 

at the time the deed was executed.  King County v. Hanson Inv. Co., 34 Wn.2d 

112, 126, 208 P.2d 113 (1949).  Moreover, where we remain in doubt as to the 
parties' intent, in general, "'a deed will be construed against the grantor.'"4 Ray 

v. King County, 120 Wn. App. 564, 587 n.67, 86 P.3d 183 (2004) (quoting 17 

William B. Stoebuck, Washington Practice: Real Estate: Property Law § 7.9, at 

463 (1995)).  

       The form of quitclaim deeds in Washington is governed by statute.  The 

relevant statute stipulates that a quitclaim deed "may be in substance" in the 

following form:

              The grantor (here insert the name or names and place of 
       residence), for and in consideration of (here insert consideration) 
       conveys and quitclaims to (here insert grantee's name or names) 
       all interest in the following described real estate (here insert 
       description), situated in the county of . . . . . ., state of Washington.  
       Dated this . . . . day of . . . . . ., 19. . .

RCW 64.04.050.  

       Here, the 1981 quitclaim deed states that "[t]he Grantors . . . convey[] and 

quit claim[] to [NYBA] the following described real estate, situated in the County 

       4 Seattle Boat asserts that, because NYBA was the drafter of the quitclaim deed, the 
association should not benefit from any presumption in favor of the grantee and against the 
grantor.  See. e.g., Hanson Indus., Inc. v. County of Spokane, 114 Wn. App. 523, 531, 58 P.3d 
910 (2002). However, this rule of construction is based not merely on the reality that the grantor 
is generally also the drafter, but also on the principle that a grantor cannot derogate from his 
grant. 17 Stoebuck & Weaver, supra, § 7.9, at 486 n.9. At least one court has held that, where a 
grantee has drafted the deed, ambiguities should be resolved in favor of neither party.  Harris v. 
Ski Park Farms, Inc., 62 Wn. App. 371, 375-76, 814 P.2d 684 (1991), aff'd, 120 Wn.2d 727, 844 
P.2d 1006 (1993).  Regardless, because the language of the quitclaim deed at issue is 
unambiguous, we need not determine in what direction the presumption should run. 

                                          - 8 - 

No. 66318-6-I/9

of King, State of Washington, together with all after acquired title of the 

grantor(s) therein."  The deed then recites the legal descriptions of three "strip[s] 

of land," parcels A, B, and C, that are identical to the legal descriptions of 

easements 4, 5, and 6 appearing in the declaration of easements previously 

issued to NYBA by Radovich and Keyes. Significantly, the deed also reserves to

the grantors an easement for ingress and egress across parcel C.  The deed is 

dated July 23, 1980.  

       Seattle Boat contends that the grantors' failure to employ the words "all 

interest in" creates a facial ambiguity in the deed that must be resolved by resort 

to extrinsic evidence.  By omitting this "key phrase," Seattle Boat asserts, the 

grantors left unclear whether the deed was intended to convey all of their rights 
of ownership in the described parcels.5 Where a statement is capable of two or 

more meanings, it is ambiguous.  Hoglund v. Omak Wood Prods., Inc., 81 Wn. 

App. 501, 504, 914 P.2d 1197 (1996).  The question of ambiguity is a matter of 

law to be determined by the court.  Hoglund, 81 Wn. App. at 504.  

       As an initial matter, a quitclaim deed need not precisely match the form 

described in RCW 64.04.050 in order to convey fee title.  To the contrary, the 

statute stipulates that where a deed "in substance" conforms to the statutory 

language, the deed "shall be deemed and held a good and sufficient 

conveyance, release and quitclaim to the grantee . . . in fee of all the then 

       5 As Seattle Boat correctly points out, unlike deeds that follow the statutory warranty or 
bargain and sale deed form, a quitclaim deed does not carry with it a presumption that a fee 
simple estate is being transferred.  Roeder Co. v. K & E Moving & Storage Co., 102 Wn. App. 
49, 56, 4 P.3d 839 (2000).  

                                          - 9 - 

No. 66318-6-I/10

existing legal and equitable rights of the grantor in the premises therein 

described."  RCW 64.04.050. No Washington court has concluded that a 

quitclaim deed must contain the phrase "all interest in" to validly convey fee 

simple title.  Indeed, as Professor Stoebuck has explained, the operative words 

of a quitclaim deed are "conveys and quitclaims."  18 William B. Stoebuck &

John W. Weaver, Washington Practice: Real Estate: Transactions § 14.2, at 116

(2d ed. 2011).  It has long been the rule that a valid quitclaim deed "'passes all 

the right, title, and interest which the grantor has at the time of making the deed 

and which is capable of being transferred by deed, unless a contrary intent 

appears.'"  McCoy v. Lowrie, 44 Wn.2d 483, 486, 268 P.2d 1003 (1954) (quoting 

K.A. Drechsler, Annotation, Rights or Interests Covered by Quitclaim Deed, 162 

A.L.R. 556, 557 (1946)).  

       Moreover, with regard to the quitclaim deed at issue herein, any potential 

ambiguity created by the absence of the words "all interest in" is dispelled when 

every word of the deed is given meaning.  See Fowler, 45 Wn.2d at 334 ("It is 

the duty of the court to construe a deed so as to give some meaning to every 

word, if reasonably possible."). In addition to conveying the then-existing rights 

of the grantor, a quitclaim deed may also convey after-acquired title if words to 

this effect appear in the deed.  RCW 64.04.050. The 1981 quitclaim deed 

specifies that, in addition to granting to NYBA the "real estate" described therein, 

the deed also conveys "all after acquired title" of the grantors to the described 

                                         - 10 - 

No. 66318-6-I/11

parcels.  The inclusion of this language negates the possibility that the grantors 

intended anything but the conveyance of their entire interest in the described 

property.  Even were the grantors to have held less than fee title to the parcels 

at the time the deed was executed, any and all later-obtained ownership interest 

was also conveyed to NYBA by the deed through inclusion of this language.  

       This conclusion is further bolstered by the grantors' reservation of an 

easement "for ingress and egress" over a portion of parcel C described in the 

deed.  Such a reservation would make little sense if the grantors' intent was to 

retain fee title to the described property -- if this was the intent of the 

conveyance, no easement benefitting the commercial parcel would be 

necessary.  

       As it is undisputed that Keyes and Radovich held fee title to portions of 

the described areas, and the unambiguous language of the deed makes clear 

that the intent of the grantors was to convey all of their interest in this land, the 

deed was sufficient to convey fee title.  Indeed, the trial court recognized that the 

quitclaim deed "purports to convey fee simple title" to NYBA.  

       Nevertheless, Seattle Boat contends that, pursuant to our Supreme 

Court's decision in Kershaw Sunnyside Ranches, Inc. v. Yakima Interurban 

Lines Ass'n, 156 Wn.2d 253, 126 P.3d 16 (2006), a court must always consider 
extrinsic evidence when determining the intent of the parties to a deed.6  Initially, 

       6 In Kershaw, the court noted that "[e]ven absent ambiguity, this court, unlike in statutory 
or contract construction cases, has consistently examined the circumstances surrounding the 
transfer and subsequent conduct of the parties, regardless of ambiguity, if helpful in ascertaining 
the parties' intent, which is 'of paramount importance.'" 156 Wn.2d at 272 n.15 (quoting Brown

                                         - 11 - 

No. 66318-6-I/12

we note that Kershaw involved a deed for a railroad right-of-way -- an area of law 

that has long received unique treatment by Washington courts.  1 Washington 

State Bar Association, Washington Real Property Deskbook Series: Real Estate 

Essentials § 5.8(2) (4th ed. 2009) (noting that railroad right-of-way cases 

constitute an exception to the general rules of deed construction); see Brown v. 

State, 130 Wn.2d 430, 436-37, 924 P.2d 908 (1996) (observing that decisions 

regarding railroad rights-of-way are "in considerable disarray and usually turn on 

a case-by-case examination of each deed").  Moreover, although our Supreme 

Court has, on three occasions, observed that surrounding circumstances may be 

considered in the absence of ambiguity when determining the intent of the 
parties to a railroad deed,7 the court has never seen fit to apply this principle

outside of the context of railroad right-of-way cases.8

       Indeed, just one year before Kershaw, in a case that did not involve a 

railroad deed, the court explained that Washington law requires that the intent of 

the parties be determined from the unambiguous language of the document 

itself.  In Niemann v. Vaughn Community Church, the court reaffirmed that "'[t]he 

intent of the parties is to be derived from the entire instrument and, if ambiguity 

v. State, 130 Wn.2d 430, 437-38, 924 P.2d 908 (1996)).  
       7 Kershaw, 156 Wn.2d at 270 n.12; Brown, 130 Wn.2d at 438; Harris v. Ski Park Farms, 
Inc., 120 Wn.2d 727, 742-43, 844 P.2d 1006 (1993); see also Roeder Co., 102 Wn. App. at 53.
       8 Although the court's decision in Kershaw primarily concerned the interpretation of a 
railroad deed, the court also considered whether a quitclaim deed from a mother to son that 
excepted an existing right-of-way for a railroad was intended to convey the mother's own 
interests in the right-of-way.  156 Wn.2d at 272.  It was in this context that the court stated, in 
dicta, that the extrinsic evidence can be considered in the absence of ambiguity.  However, 
because the court determined that the deed at issue was, in fact, ambiguous, the court did not 
rely on this principle in deciding the case before it.

                                         - 12 - 

No. 66318-6-I/13

exists, the situation and circumstances of the parties at the time of the grant are 
to be considered.'"9 154 Wn.2d 365, 374, 113 P.3d 463 (2005) (emphasis 

added) (quoting Harris v. Ski Park Farms, Inc., 120 Wn.2d 727, 739, 844 P.2d 

1006 (1993)).  More recently, in Kiely v. Graves, the court explained that, where 

an interest in land is dedicated to a city by the presentment of a plat, the

grantor's intent must be determined "from the plat itself." __ Wn.2d__, 271 P.3d 

226, 230-31 (2012) (citing Frye v. King County, 151 Wash. 179, 182, 275 P. 547 

(1929)).  In none of these three cases -- Niemann, Kershaw, and Kiely -- did the 

Supreme Court indicate that it was adopting a new rule of construction or 

departing from prior precedent.  Thus, viewed as a whole, the cases confirm that

the court -- in deciding cases -- has continued to adhere to its rule that a deed 

must be ambiguous before extrinsic evidence is properly considered, at least 

outside of the discrete subset of cases interpreting railroad right-of-way 

interests.  

       However, even if Seattle Boat is correct in contending that extrinsic 

evidence was properly considered by the trial court, the extrinsic evidence 

adduced at trial fails to demonstrate that the 1981 quitclaim deed was intended 

to convey anything less than fee title.  Indeed, the only testimony of the parties 

to the transaction was that the quitclaim deed was intended to convey fee title.  

       9 Similarly, in Sunnyside Valley, a case that also did not involve a railroad deed, the 
Supreme Court felt it necessary to correct the Court of Appeals for stating that the intent of the 
parties regarding an easement should be determined from "the circumstances surrounding the 
grant." Sunnyside Valley Irrigation Dist. v. Dickie, 111 Wn. App. 209, 214-15, 43 P.3d 1277 
(2002). To the contrary, the court explained, "[i]f the plain language [of the deed] is 
unambiguous, extrinsic evidence will not be considered." Sunnyside Valley, 149 Wn.2d at 880.

                                         - 13 - 

No. 66318-6-I/14

Radovich, the grantor of the deed, testified that he intended to convey "all of the 

interest we had" in the described property.  Alan Lang, the president of NYBA at 

the time the quitclaim deed was executed, likewise testified that he understood 

the deed to be a conveyance of fee title.  

       Of even greater significance is the fact that the purposes for which a court 

may properly consider extrinsic evidence pursuant to our state's context rule are 

limited.  As our Supreme Court has explained, a trial court may not consider:

       Evidence of a party's unilateral or subjective intent as to the 
       meaning of a . . . word or term;

       Evidence that would show an intention independent of the 
       instrument; or

       Evidence that would vary, contradict or modify the written word.

Hollis v. Garwall, Inc., 137 Wn.2d 683, 695, 974 P.2d 836 (1999); see also

Bloome v. Haverly, 154 Wn. App. 129, 138-39, 225 P.3d 330 (2010). "Extrinsic 

evidence is to be used to illuminate what was written, not what was intended to 

be written."  Hollis, 137 Wn.2d at 697.  

       Here, the trial court improperly relied on extrinsic evidence to contradict 

the written words of the quitclaim deed.  The court explained that the real estate 

excise tax affidavit filed by NYBA's vice president -- stating that the quitclaim

deed was a "document in correction of easements," -- "confirmed" that the deed 

was intended merely to correct the declaration of easements previously issued 
by Radovich and Keyes.1 Similarly, the court found that references in the 

       1 The vice president's characterization of the deed, of course, could have no legal effect 

                                         - 14 - 

No. 66318-6-I/15

meeting minutes of the NYBA board of directors to the acquirement of 

"easements" through quitclaim deeds indicated that the intent of the deed was 
not to convey fee title but to grant easements.11 However, the 1981 quitclaim 

deed contains no reference to either a conveyance or correction of easements.  

Instead, the deed clearly documents the intent of the grantors to convey all 

ownership interest in the three easement areas -- the "described real estate . . . 

together with all after acquired interest."  Accordingly, it was impermissible for 

extrinsic evidence to be relied upon in divining an intent in the grantors to 

convey something less than their entire interest in the land, as such evidence 

clearly contradicted the words of the deed.  Similarly, extrinsic evidence was not 

properly relied upon to conclude that the quitclaim deed was intended as a 

correction of easements, as such an intention would be entirely independent of 

the instrument.  

       The trial court erred by relying on extrinsic evidence to determine that 

which it believed the parties "intended to be written."  Hollis, 137 Wn.2d at 697.  

on the validity of the quitclaim deed, which took effect upon its delivery to NYBA.  See, e.g., 
Hampton v. Gilleland, 61 Wn.2d 537, 545, 379 P.2d 194 (1963). Furthermore, it is unclear 
whether the vice president's characterization can be imputed to NYBA as evidence of the 
association's intent regarding the nature of the estate granted.  Although the vice president acted 
as an agent of NYBA in recording the deed, there was no evidence that he had any knowledge 
regarding the details of the transaction itself.  Moreover, the vice president's description of the 
deed is itself ambiguous. It is possible that the use of the phrase, "correction of easements," 
simply reflected the vice president's understanding that the property had been subject to 
easements prior to its conveyance.  
       11 The trial court explained that its finding of intent was further reinforced by the grantors' 
continued payment of property taxes, the failure of NYBA to amend its condominium declaration 
to reflect acquisition of the parcels, the lack of consideration paid by NYBA, and the absence of 
a purchase and sale agreement. Significantly, the court made no mention of the language of the 
deed itself, noting merely that "the Quit Claim Deed purports to convey fee simple title."  Nor did 
the court explain why a quitclaim deed would be necessary to grant easements that were already 
held by NYBA.

                                         - 15 - 

No. 66318-6-I/16

Because the words of the deed unambiguously document the intent of the 

grantors to convey their entire ownership interest in the described land, the 1981 

quitclaim deed constitutes a valid conveyance of fee simple title.

                                           III

       NYBA next contends that the trial court erred by determining that, 

because Keyes and Radovich failed to comply with statutory and local 

requirements governing the subdivision of real property, the quitclaim deed 

constitutes an "illegal and unenforceable conveyance."  We agree.

       As an alternative basis for decision, the trial court ruled that the deed was 

unenforceable because Radovich and Keyes did not comply with statutory 

procedures for subdividing property.  At the time the quitclaim deed was 

executed, former RCW 58.17.060 (1974) provided that "[t]he legislative body of 

a city . . . shall adopt regulations and procedures . . . for the summary approval 

of short plats and short subdivisions, or revision thereof."  The Bellevue City 

Code set forth multiple requirements on short subdivision applicants. Failure to 

comply with such provisions constitutes a misdemeanor.  RCW 58.17.300. It is 

undisputed that Radovich and Keyes did not comply with these requirements 
prior to execution of the quitclaim deed.12 Accordingly, the trial court concluded 

       12 RCW 58.17.040(6) exempts boundary line adjustments from the requirements of state 
and local subdivision regulations.  NYBA asserts that, because the quitclaim deed did not create 
new lots or reduce the commercial parcel below the minimum building site size, this conveyance 
constituted a boundary line adjustment and did not violate either statutory or local provisions.  
The trial court, however, determined that the intent of the deed was "not an attempt to make a 
boundary line adjustment of any kind."  Because, even assuming the existence of a violation of 
the subdivision regulations, the trial court erred by determining that the deed could not be 
enforced on this basis, we need not address this alternative argument.

                                         - 16 - 

No. 66318-6-I/17

that it could not "condone such conduct by enforcing the Quit Claim Deed."    

       As an initial matter, the trial court's reliance on Berg v. Ting, 125 Wn.2d 

544, 886 P.2d 564 (1995), and Dickson v. Kates, 132 Wn. App. 724, 133 P.3d 

498 (2006), for the proposition that a deed is "void on its face for failing to 

comply with statutory requirements" is misplaced.  In each of these cases, the 

court held that a deed was unenforceable because it lacked a property 

description sufficient to satisfy the statute of frauds.  Neither case stands for the 

more general proposition, asserted by Seattle Boat, that a deed is unenforceable 

because it fails to comply with some other statutory or local regulatory 

requirement.

       Moreover, the trial court's ultimate conclusion -- that a deed issued in 

violation of the provisions of chapter 58.17 RCW is unenforceable -- is 

irreconcilable with that statutory scheme.  Although RCW 58.17.210 provides 

that certain permits may not be issued on illegally subdivided property, this 

section exempts an innocent purchaser from these consequences, indicating 
that, at minimum, such purchases are permissible.13 Furthermore, this section 

stipulates that any purchaser -- innocent or not -- may recover damages incurred 

as a result of buying land that has been subdivided in violation of either state or 

local regulations.  RCW 58.17.210. Alternatively, the purchaser may choose to 

       13 Seattle Boat contends that, as the drafter of the quitclaim deed, NYBA is not an 
"innocent purchaser" and, thus, may not benefit from this exemption.  However, it is immaterial 
whether NYBA was, in fact, an innocent purchaser; what matters for purposes of NYBA's appeal 
is that the statutory scheme contemplates that illegally subdivided property may be bought and 
sold.  

                                         - 17 - 

No. 66318-6-I/18

"rescind the sale or transfer and recover costs . . . occasioned thereby."  RCW 

58.17.210. A statutory scheme that leaves the choice of remedies to the 

discretion of the purchaser clearly contemplates that illegally subdivided land 

may be bought and sold.  Moreover, if, as the trial court determined, such 

transfers could be voided at the request of a third party, the purchaser would be 

deprived of these statutory remedies.  Such an outcome would undermine the 

legislature's statutory scheme governing the regulation of subdivisions.  

       The legislature's determination that a purchaser may elect a remedy in an 

action against the seller of illegally subdivided land is irreconcilable with the trial 

court's determination that the deed was -- as a matter of law -- unenforceable.  

The court erred by determining that, because the quitclaim deed resulted in an 

illegal subdivision, the deed could not be enforced. 

                                           IV

       NYBA next contends that the trial court erred by determining that, 

because NYBA is an unincorporated association, it could not take title to the 

property conveyed and, thus, that the quitclaim deed is void.  We agree.

       As Seattle Boat points out, at common law, unincorporated associations 

could not legally hold title to real property.  Edward W. Kuhrau, Washington 

Real Property Deskbook, Vol. II, at § 32.5(6) (3d ed. 1996) ("Generally it has 

been held that unincorporated associations . . . cannot hold title to real property 

because they are not legal entities.").  However, this does not mean that a 

                                         - 18 - 

No. 66318-6-I/19

conveyance to such an association is unenforceable.  Instead, because property 

titled in the name of an unincorporated association belongs to its members, the 

legal effect of a conveyance to an unincorporated association is that the 

property is owned by the association's members.  See 6 Am. Jur. 2d.

Associations & Clubs § 12 ("[T]he legal effect of a gift to a voluntary, 

unincorporated association is a gift to its individual members."); Kuhrau, supra, 

at § 32.5(6) (noting that real property owned by unincorporated associations is 

"generally recognized as belonging to the members of the association").  
       Here, it is undisputed that NYBA is an unincorporated association.14  

Accordingly, the real estate described in the quitclaim deed and conveyed to 

NYBA is owned by the condominium members as tenants-in-common.  The trial 

court erred by concluding, as a matter of law, that a deed conveying real 
property to an unincorporated association is unenforceable.15

                                           V

       NYBA next contends that the trial court erred by determining that the 

quitclaim deed is unenforceable because NYBA's declaration was not "amended 

to include a description of the common areas and facilities."  We agree.

       14 Because NYBA was formed prior to 1990, it is governed by the Horizontal Property 
Regimes Act, under which it is permissible for condominium associations to be unincorporated. 
Ch. 64.32 RCW. All post-1990 condominium associations are governed by the Washington 
Condominium Act and must be incorporated.  RCW 64.34.300.
       15 The trial court's conclusion that the quitclaim deed "constitutes an illegal and 
unenforceable conveyance of real property [because NYBA is] an unauthorized 'trustee' of a non-
existent trust" also finds no support in the law.  Although the quitclaim deed describes NYBA as a
"trustee for the benefit of the Apartment Owners," because the legal effect of the conveyance to 
NYBA is that the condominium owners hold the property as tenants-in-common, it makes no 
difference whether this language was sufficient to establish a valid trust.  Indeed, Seattle Boat 
makes no effort to defend the trial court's conclusion of law on appeal.

                                         - 19 - 

No. 66318-6-I/20

       Pursuant to the Horizontal Property Regimes Act, chapter 64.32 RCW, a 

condominium declaration must describe a condominium's common areas.  RCW 

64.32.090(4).  However, Seattle Boat points to no authority indicating that the 

failure of a declaration to properly reflect the acquisition of such property 
actually limits the validity of the property's conveyance.16 On appeal, Seattle 

Boat contends that the purpose of this requirement is to put "the world on notice 

[regarding an association's] understanding of land ownership," and that, 

because NYBA failed to do so, Seattle Boat took superior title to the easement 

areas by recording its deed to the commercial parcel.  However, this assertion 

ignores the fact that NYBA recorded the 1981 quitclaim deed.  Washington's 

recording act is a "race-notice" statute, and the recording of a deed "imparts 

constructive notice of the estate or interest acquired to all subsequent 

purchasers, whether or not they are bona fide purchasers for value and whether 

or not they have actual notice of the conveyance."  Kuhrae, supra, at § 32.6(3) 

(citing Biles-Coleman Lumber Co. v. Lesamiz, 49 Wn.2d 436, 438, 302 P.2d 198 

(1956)); see also Alby v. Banc One Fin., 156 Wn.2d 367, 371,128 P.3d 81 

(2006) (observing that, where earlier deed was recorded, subsequent purchaser 

of land was on notice of restrictions in earlier deed).  Accordingly, Seattle Boat

       16 NYBA asserts that, because the Washington Condominium Act ("WCA"), chapter 
64.34 RCW, provides that an "insignificant failure" of the declaration to describe a common area 
does not impair title to units or common elements, RCW 64.34.208, NYBA's failure to amend its 
declaration cannot require that the deed be set aside. However, although this provision of the 
WCA is applicable to pre-1990 condominiums, it applies only with respect to events and 
circumstances occurring after July 1, 1990.  RCW 64.34.010. As the quitclaim deed was 
recorded in 1981, the provision does not apply in this case.

                                         - 20 - 

No. 66318-6-I/21

had constructive notice that the easement areas had previously been conveyed.

       Seattle Boat has advanced no reasonable basis for us to conclude that 

the failure to amend a condominium declaration to reflect a conveyance of real 

property invalidates that conveyance. The proper remedy is for NYBA's 

declaration to be amended.  The trial court erred by determining, as a matter of 

law, that the deed was unenforceable for this reason.

                                           VI

       NYBA next asserts that the trial court erred by concluding that the 

association lost its right to seek enforcement of the quitclaim deed based upon 

the equitable doctrines of laches and equitable estoppel.  We agree.

       Laches is an equitable defense that is based on estoppel.  Real Progress, 
Inc. v. City of Seattle, 91 Wn. App. 833, 843-44, 963 P.2d 890 (1998).17 The 

doctrine applies when the defendant affirmatively establishes: "(1) knowledge by 

plaintiff of facts constituting a cause of action or a reasonable opportunity to 

discover such facts; (2) unreasonable delay by plaintiff in commencing an action; 

and (3) damage to defendant resulting from the delay in bringing the action." 

Davidson v. State, 116 Wn.2d 13, 25, 802 P.2d 1374 (1991). "To constitute 

laches there must not only be a delay in the assertion of a claim but also some 

change of condition must have occurred which would make it inequitable to 

       17 "Laches has been applied by Washington courts since 1894."  Deane W. Minor,
Environmental Law -- Threshold Determination of the State Environmental Policy Act: Washington 
Adopts a More Flexible Approach -- Equitable Remedies: Laches Defense Restricted -- Hayden v. 
City of Port Townsend, 93 Wn.2d 870, 613 P.2d 1164 (1980), 56 Wash. L. Rev. 549, 556 (1981) 
(citing Rigney v. Tacoma Light & Water Co., 9 Wash. 576, 38 P. 147 (1894)).

                                         - 21 - 

No. 66318-6-I/22

enforce it."  Waldrip v. Olympia Oyster Co., 40 Wn.2d 469, 477, 244 P.2d 273 

(1952). "[W]hen asserted in opposition to the interest of a landowner, [laches] 

must be proved by clear and convincing evidence."  Arnold v. Melani, 75 Wn.2d 

143, 148, 449 P.2d 800, 450 P.2d 815 (1968). The question of whether a 

particular case is one to which a grant of equitable relief, in some form, is 

appropriate is subject to de novo review.  Niemann, 154 Wn.2d at 374.

       Here, the trial court determined that NYBA had unreasonably delayed the 

commencement of its quiet title action because "for decades" it failed to seek 

judicial enforcement of the quitclaim deed or to "assert any ownership" over the 

property described therein.  However, the evidence adduced at trial indicates 

that NYBA and Mercer Marine, Seattle Boat's predecessor in interest, generally 

co-existed in peace, and that legal action was therefore unnecessary prior to 
Seattle Boat's acquisition of the commercial parcel.18  Nevertheless, Seattle Boat

asserts that NYBA was required to raise a claim of fee title ownership in 2004, 

when Burbridge proposed a redevelopment project that would involve a 

reconfiguration of the easement areas described in the quitclaim deed.  

However, NYBA never agreed to that project, and Burbridge did not, in fact, 

proceed with his plans for redevelopment.  Accordingly, there is no evidence that 

NYBA ever unreasonably delayed legal action during the period prior to Seattle 

       18 NYBA did, at times, assert its property rights against Burbridge.  In 1987, NYBA's 
attorney wrote a letter informing Burbridge that a building owned by Mercer Marine encroached 
onto a portion of NYBA's property.  The encroachment was located on a portion of the land 
described in the quitclaim deed.  The letter gave NYBA permission to leave the building on the 
property, and Burbridge later testified that he took no action in response to receiving the letter.  

                                         - 22 - 

No. 66318-6-I/23

Boat's acquisition of the commercial parcel -- Burbridge's conduct simply did not 

give rise to a dispute requiring the commencement of legal action.  

       Seattle Boat nevertheless contends that NYBA unreasonably delayed 

legal action in the periods just before and subsequent to its purchase of the 

commercial parcel.  One month prior to the sale, Alan Bohling, Seattle Boat's 

president, met with the Kyle Anderson, the president of the NYBA board, to 

discuss Seattle Boat's general redevelopment plan.  Although Bohling provided 

no specifics of the plan, because the parties discussed the demolition of a NYBA-

owned structure within parcel B, Seattle Boat asserts that NYBA was required to 

bring an action to quiet title at that time.  However, Bohling himself testified that, 

while such a discussion took place, the parties also discussed moving NYBA's 

offices into a new building to be constructed on the commercial parcel to 

ameliorate the impact of the demolition.  Because this plan offered a substantial 

benefit to NYBA, and because the plan was never finalized, it was not shown by 

clear and convincing evidence that NYBA should have known it had a cause of 

action against Seattle Boat at that time.  

       Indeed, discussions between Seattle Boat and NYBA regarding the 

redevelopment plan continued in the period after Seattle Boat closed on the 

property.  Although Anderson "steadfastly" maintained the position that NYBA 

had exclusive use of the areas described in the quitclaim deed, his discussions 

with Bohling continued to be "constructive and amiable conversations where I 

                                         - 23 - 

No. 66318-6-I/24

felt that [Bohling] really got what our concerns were and was willing and open to 

working towards a resolution."  Bohling likewise testified that these discussions 

proceeded in "a great spirit of cooperation."  Indeed, it was only when Seattle 

Boat indicated its unwillingness to accommodate NYBA's parking concerns -- at 

some time soon after NYBA's February 2008 board meeting -- that Anderson 

realized the parties had encountered a "major, major sticking point."  

       Until that time, NYBA could reasonably have believed that any dispute 

with Seattle Boat could be resolved without resort to litigation.  Laches cannot 

apply where a plaintiff has no reason to believe that legal action is necessary.  

See Assocs. Hous. Fin. LLC v. Stredwick, 120 Wn. App. 52, 62, 83 P.3d 1032 

(2004). As NYBA commenced this lawsuit on September 9, 2008, only seven

months passed between the time when NYBA should first have determined that 

litigation might be necessary and the time that it actually brought suit against 

Seattle Boat.  Such a delay does not support the application of laches.  Compare

Gardner v. Herbert, 165 Wash. 429, 434, 5 P.2d 782 (1931) (holding no laches

where husband permitted divorced wife to use land for 15 months after receiving 

deed), with Davidson, 116 Wn.2d at 26-27 (holding that 62-year delay in 

bringing claim supports application of laches to bar claim). 

       Nor do the facts of this case support the trial court's application of 

equitable estoppel.  The elements of equitable estoppel are: (1) an act or 

omission by the first party; (2) an act by another party in reliance on the first 

                                         - 24 - 

No. 66318-6-I/25

party's act; (3) an injury that would result to the relying party if the first party 

were not estopped from repudiating the original act.  Kramarevcky v. Dep't of 

Soc. & Health Servs., 122 Wn.2d 738, 743, 863 P.2d 535 (1993).  This doctrine 

is not favored and must be proved by clear, cogent, and convincing evidence.  

Robinson v. City of Seattle, 119 Wn.2d 34, 82, 830 P.2d 318 (1992). Moreover, 

our Supreme Court has explained that "mere silence or acquiescence will not 

operate to work an estoppel where the other party has constructive notice of 

public records which disclose the true facts."  Waldrip, 40 Wn.2d at 476.  

"Where the parties have equal means of knowledge there can be no estoppel in 

favor of either."  Waldrip, 40 Wn.2d at 476.  

       Here, the quitclaim deed was recorded in 1981.  Accordingly, Seattle Boat
had constructive knowledge of NYBA's ownership of the easement areas.19  See

Biles-Coleman Lumber Co., 49 Wn.2d at 438.  Because the public record 

discloses "the true facts," Waldrip, 40 Wn.2d at 476, there can be no estoppel in 

favor of Seattle Boat.  Indeed, Seattle Boat makes no effort to defend this 

conclusion of law on appeal.  The trial court erred by applying the doctrines of 

laches and equitable estoppel in determining that the deed was unenforceable.  

                                           VII

       NYBA next contends that the trial court erred by concluding that the 

quitclaim deed must be set aside based upon a lack of consideration in the 

       19 In addition, as NYBA points out, the association neither committed an act nor made 
any omission that could give rise to a reasonable belief that Seattle Boat would own the 
easement areas in fee simple following its purchase of the commercial parcel.  At no point did 
NYBA agree to Seattle Boat's unfettered use of the easement areas.

                                         - 25 - 

No. 66318-6-I/26

conveyance from Radovich and Keyes to NYBA in 1980.  For several reasons, 

we agree.

       First, as a threshold matter, a stranger to a contract may not challenge 

the contract's validity based on inadequate consideration.  Because 

consideration constitutes the heart of the parties' bargain, this defense to a 

contract is personal to the contracting parties. See, e.g., Spanish Oaks, Inc. v. 

Hy -- Vee, Inc., 265 Neb. 133, 138, 655 N.W.2d 390 (2003) ("[T]he fact that a third 

party would be better off if a contract were unenforceable does not give him 

standing to sue to void the contract.").  Here, neither NYBA nor Radovich -- the 

parties to the 1980 transaction that resulted in the 1981 recording of the

quitclaim deed -- challenged the conveyance of the deed based upon an 

asserted lack of consideration.  The trial court erred by determining that the 

quitclaim deed must be set aside on this basis.

       Second, setting aside the quitclaim deed constitutes a form of rescission.  

Thus, if the trial court was cancelling the contract of conveyance by declaring 

the deed unenforceable (hence ruling that title never left Radovich and Keyes in 

favor of NYBA), restitution of the purchase price was a necessary corollary to 

this ruling.  The parties never addressed or considered this issue and, needless 

to say, the trial court, as a result, never made any finding on the matter.  NYBA 

could not rightly be deprived of the benefit of its bargain without a resultant 

return to it of the purchase price.  But, here, that happened.  This was error.

                                         - 26 - 

No. 66318-6-I/27

       Third, calculating the amount of restitution would have been nigh 

impossible -- making rescission an inappropriate remedy.  Here, as explained 

more fully below, part of the consideration that Radovich and Keyes received 

from NYBA was NYBA's forbearance from suing them for providing parking in an 

amount less than the law required.  In this regard, the conveyance of the quit

claim interest operated, in part, as an accord and satisfaction of that claim.  By 

2004, Radovich and Keyes had accepted -- and consumed -- over two decades of 

this benefit.  No way exists for a trial court to order them to disgorge this benefit 

back to the purchaser (NYBA) as part of rescinding the contract of sale of the 

land described in the quitclaim deed.  Thus, the remedy sought (by a stranger to 

the contract) -- rescission of the contract of sale and restoration of the parties to 

their pre-contract status -- was impossible to grant, even if it had been requested 

by an entity with standing to make such a request.

       Fourth, the evidence presented on the question of lack of consideration 

was not of a type that would allow for a court to order rescission (as opposed to 

compensatory damages).  Seattle Boat's claim -- in large part -- rested on its 

assertion that NYBA did not follow through with its promise to pay all future taxes 

on the property.  For a century, it has been the law of this state that such a claim 

does not support rescission as a remedy.  Hewett v. Dole, 69 Wash. 163, 170, 

124 P. 374 (1912). Once title has transferred, failure to pay further sums owing 

does not constitute failure of consideration in the formation of a contract -- it 

                                         - 27 - 

No. 66318-6-I/28

constitutes a breach of the contract.  The appropriate remedy is an award of 

damages.   Hewett, 69 Wash. at 170.  Only by proving fraud in the inception of 

the contract would a vendor have a right to rescission as a remedy.  Hewett, 69 

Wash. at 169-70.  However, there is "no authority holding that a preconceived 

intention not to perform is established merely by a subsequent failure or refusal 

to perform."  Hewett, 69 Wash. at 170.  Thus, the evidence presented was not of 

a type that could lend itself to supporting an order rescinding the sale.

       Finally, the evidence presented at trial -- as a whole -- does not establish a 

lack of consideration.  As our Supreme Court has long recognized, "[g]enerally

speaking, inadequacy of price is not sufficient, standing by itself, to authorize a 

court of equity to set aside a deed."  Downing v. State, 9 Wn.2d 685, 688, 115 

P.2d 972 (1941). Only where the inadequacy of consideration for conveyance of 

realty is so great as to shock the conscience may a court invoke its equitable 

power to set aside the conveyance. Downing, 9 Wn.2d at 688; see also Binder 

v. Binder, 50 Wn.2d 142, 150, 309 P.2d 1050 (1957).  However, quitclaim deeds 

are commonly used in transactions that are not the result of a sale for value.  17 

Stoebuck & Weaver, supra, § 7.2, at 472. Such instruments are "used in 

donative transactions, in which, despite the recital of consideration in the deed, 

no actual consideration passes except perhaps love and affection."  17 Stoebuck

& Weaver, supra, § 7.2, at 472. Similarly, quitclaim deeds are often used "to 

clear title, to correct errors in prior deeds, and to adjust disputed boundaries 

                                         - 28 - 

No. 66318-6-I/29

between adjoining landowners."  17 Stoebuck & Weaver, supra, § 7.2, at 472. In 

such circumstances, "the common practice in Washington . . . to recite 

consideration of 'ten dollars and other good and valuable consideration' is 

sufficient to support a conveyance by deed."  17 Stoebuck & Weaver, supra, § 

7.7, at 483.

       Here, the quitclaim deed recited as consideration, "Ten . . . Dollars, and 

other good and valuable consideration."  As an initial matter, the trial court's 

determination that "no consideration was provided to Radovich and Keyes in 

exchange for the Quit Claim Deed," is not supported by substantial evidence.  

The undisputed evidence at trial indicates that, at a minimum, NYBA paid back 

taxes on the easement areas for the years of 1978, 1979, and 1980.  

Nevertheless, Seattle Boat contends that the recited dollar amount -- even when 

coupled with NYBA's payment of the back taxes -- is so inadequate as to shock 

the conscience.  This assertion, however, ignores the fact that Radovich and 

Keyes had provided NYBA with far less parking than promised or required by 
law.2 Conveying fee title to the easement areas was one attempt to remedy this 

situation and, thus, to avoid litigation between NYBA and Radovich.  Given the 

purposes for which the deed was executed, and recognizing that at least some 

consideration was given, the consideration for the deed was not so inadequate 
as to shock the conscience.  The trial court erred by concluding to the contrary.21

       2 The local codes required 208 parking spaces, but the developers obtained approval for 
a plan with only 187 spaces.  Nevertheless, only 123 spaces were provided.
       21 Because the quitclaim deed is both valid and enforceable, we need not reach NYBA's 
contention that the trial court erred by determining that NYBA's easement rights were 

                                         - 29 - 

No. 66318-6-I/30

                                          VIII

       NYBA contends, finally, that the trial court erred by concluding that 

Mercer Marine, Seattle Boat's predecessor in interest, acquired a narrow strip of 

frontage property and a vault located within parcel B by way of adverse 

possession.  We disagree.  

       Adverse possession requires possession that was (1) open and notorious, 

(2) actual and uninterrupted, (3) exclusive, and (4) hostile for the statutory 

10 -- year period.  Chaplin v. Sanders, 100 Wn.2d 853, 857, 676 P.2d 431 (1984).  

"Hostility . . . 'does not import enmity or ill-will, but rather imports that the 

claimant is in possession as owner, in contradistinction to holding in recognition 

of or subordination to the true owner.'"  Chaplin, 100 Wn.2d at 857-58 (quoting 

King v. Bassindale, 127 Wash. 189, 192, 220 P. 777 (1923)).  

       Without citation to the record, NYBA asserts that Mercer Marine's use of 

the frontage property and vault was permissive and not hostile.  However, the 

trial court's factual findings with regard to this issue are well supported by 

substantial evidence.  There was ample evidence adduced at trial indicating that 

Mercer Marine made use of these areas as would a true owner.  Moreover, 

NYBA points to no evidence in the record indicating that it ever consented to 

Mercer Marine's use of the frontage area or the vault.  Because the necessary 

elements of adverse possession are established by these findings of fact, the 

nonexclusive.  Similarly, we do not address whether the trial court erred by finding that Seattle 
Boat's activities did not overburden NYBA's easements.

                                         - 30 - 

No. 66318-6-I/31

court did not err by concluding that Seattle Boat, as successor in interest to 

Mercer Marine, acquired these portions of NYBA's property by adverse 
possession.22

       We reverse the trial court's determinations that the quitclaim deed did not 

convey fee title and that the deed was unenforceable.  We affirm the court's 

determination that Seattle Boat acquired portions of NYBA's property through 

adverse possession.

We concur:

       22 NYBA also contends that it acquired an easement to cross the commercial parcel in 
order to access the areas described in the quitclaim deed.  At trial, NYBA asserted that it 
acquired an easement by prescription but did not contend that it acquired an easement by prior 
use or necessity.  Absent manifest constitutional error, this court does not consider a theory 
raised for the first time on appeal.  RAP 2.5(a); see Brown v. Labor Ready Nw., Inc., 113 Wn. 
App. 643, 655, 54 P.3d 166 (2002).  Accordingly, we do not address this issue.

                                         - 31 -