property exception in Washington

2021Dean v. Lehman, 143 Wn.2d 12, 19 , 18 P.3d 523 (2001). 10 No. 36605-7-III In Marriage of Jones “The burden of rebutting this presumption is on the party challenging the asset’s community property status, and ‘can be overcome only by clear and convincing proof that the transaction falls within the scope of a separate property exception.’” Id. at 19-20 (citations omitted) (quoting Estate of Madsen v. Comm’r of Internal Revenue, 97 Wn.2d 792, 796 , 650 P.2d 196 (1982), overruled in part on other grounds by Aetna Life Ins. v. Wadsworth, 102 Wn.2d 652, 659-60 , 689 P.2d 46 (1984)).

2021Dean v. Lehman, 143 Wn.2d 12, 19 , 18 P.3d 523 (2001). 10 No. 36605-7-III In Marriage of Jones “The burden of rebutting this presumption is on the party challenging the asset’s community property status, and ‘can be overcome only by clear and convincing proof that the transaction falls within the scope of a separate property exception.’” Id. at 19-20 (citations omitted) (quoting Estate of Madsen v. Comm’r of Internal Revenue, 97 Wn.2d 792, 796 , 650 P.2d 196 (1982), overruled in part on other grounds by Aetna Life Ins. v. Wadsworth, 102 Wn.2d 652, 659-60 , 689 P.2d 46 (1984)).

2021Dean v. Lehman, 143 Wn.2d 12, 19 , 18 P.3d 523 (2001). 10 No. 36605-7-III In Marriage of Jones “The burden of rebutting this presumption is on the party challenging the asset’s community property status, and ‘can be overcome only by clear and convincing proof that the transaction falls within the scope of a separate property exception.’” Id. at 19-20 (citations omitted) (quoting Estate of Madsen v. Comm’r of Internal Revenue, 97 Wn.2d 792, 796 , 650 P.2d 196 (1982), overruled in part on other grounds by Aetna Life Ins. v. Wadsworth, 102 Wn.2d 652, 659-60 , 689 P.2d 46 (1984)).

2021Dean v. Lehman, 143 Wn.2d 12, 19 , 18 P.3d 523 (2001). 10 No. 36605-7-III In Marriage of Jones “The burden of rebutting this presumption is on the party challenging the asset’s community property status, and ‘can be overcome only by clear and convincing proof that the transaction falls within the scope of a separate property exception.’” Id. at 19-20 (citations omitted) (quoting Estate of Madsen v. Comm’r of Internal Revenue, 97 Wn.2d 792, 796 , 650 P.2d 196 (1982), overruled in part on other grounds by Aetna Life Ins. v. Wadsworth, 102 Wn.2d 652, 659-60 , 689 P.2d 46 (1984)).

2025The party challenging the community property status has the burden of rebutting this presumption that “can be overcome only by clear and convincing proof that the transaction falls within the scope of a separate property exception.” Id. at 19-20 .

2023“All property acquired during a marriage is presumptively community property, 12 No. 84133-5-I/13 regardless of how title is held.” Id. at 876 (quoting Dean v. Lehman, 143 Wn.2d 12, 19 , 18 P.3d 523 (2001)); RCW 26.16.030. “‘The burden of rebutting this presumption is on the party challenging the asset’s community property status, and can be overcome only by clear and convincing proof that the transaction falls within the scope of a separate property exception.’” Kile, 186 Wn.

2026“Possession is adverse if a claimant uses property as if it were his own, entirely disregards the claims of others, asks permission from nobody, and uses the property under a claim of right.” Lee, 88 Wn.

2000Lee v. Lozier, 88 Wn.

2025App. 380 , 390, 403 P.3d 86 (2017) (quoting Burgess v. Crossan, 189 Wn.

2017The party must present "clear, cogent, and convincing evidence that the asset falls within a separate property exception." Burgess v. Crossan, 189 Wn.

2024Id. at 485 .

2023Thus, contrary to James’s assertion, it is the community property presumption—not the separate property presumption—that applies to the characterization of the duplexes. “[T]he character of property as separate or community property is determined at the date of acquisition.” Borghi, 167 Wn.2d at 484 .

1999Adverse use does not import “ill will” but means “use of property as the owner himself would exercise, entirely disregarding the claims of others, asking permission from no one, and using the property under a claim of right.” Malnati v. Ramstead, 50 Wn.2d 105, 108 , 309 P.2d 754 (1957); Pedersen, 43 Wn.

1999Adverse use does not import “ill will” but means “use of property as the owner himself would exercise, entirely disregarding the claims of others, asking permission from no one, and using the property under a claim of right.” Malnati v. Ramstead, 50 Wn.2d 105, 108 , 309 P.2d 754 (1957); Pedersen, 43 Wn.

2024Proctor, 169 Wn.2d at 500 (quoting Arnold, 75 Wn.2d at 152 ). “[D]ue to its equitable nature, the question of whether each Arnold element has been met should be analyzed using the ‘inherently flexible and fact-specific’ equitable power of the court to fashion remedies that do equity.’” Garcia, 190 Wn.2d at 543 (quoting Proctor, 169 Wn.2d at 503 ).

2018After surveying precedential cases, Arnold set forth the "test for when a court may substitute a liability rule for the traditional property rule in encroachment cases." Proctor , 169 Wash.2d at 500 , 238 P.3d 1117 . *244 *543 [A] mandatory injunction can be withheld as oppressive when, as here, it appears ... that: (1) The encroacher did not simply take a calculated risk, act in bad faith, or negligently, willfully or indifferently locate the encroaching structure; (2) the damage to the landowner was slight and the benefit of removal equally small; (3) there was ample remaining room for a str

2013The 2 adverse use requirement involves "such use of property as the owner himself would exercise, entirely disregarding the claims of others, asking permission from no one, and using the property under a claim of right."Malnati v. Ramstead, 50 Wn. d 105, 108, 309 P. d 754 (1957).Proof 2 2 of the second element (open, notorious, and continuous use) establishes "a presumption that the use was adverse, a presumption that can be rebutted by showing that the use was permissive." Pedersen v. Dep't of Transp., 43 Wn.

1999Adverse use does not import “ill will” but means “use of property as the owner himself would exercise, entirely disregarding the claims of others, asking permission from no one, and using the property under a claim of right.” Malnati v. Ramstead, 50 Wn.2d 105, 108 , 309 P.2d 754 (1957); Pedersen, 43 Wn.

2010Id. at 152. ¶16 Our opinion in Arnold grounds this test in the general power of the court to afford equitable relief. “ ‘[E]quity has a right to step in and prevent the enforcement of a legal right whenever such an enforcement would be inequitable.’ ” Id. (quoting Thisius v. Sealander, 26 Wn.2d 810, 818 , 175 P.2d 619 (1946)); accord Casa del Rey v. Hart, 110 Wn.2d 65, 71 , 750 P.2d 261 (1988); In re Estates of Palmer, 146 Wn.

2010Id. at 152. ¶16 Our opinion in Arnold grounds this test in the general power of the court to afford equitable relief. “ ‘[E]quity has a right to step in and prevent the enforcement of a legal right whenever such an enforcement would be inequitable.’ ” Id. (quoting Thisius v. Sealander, 26 Wn.2d 810, 818 , 175 P.2d 619 (1946)); accord Casa del Rey v. Hart, 110 Wn.2d 65, 71 , 750 P.2d 261 (1988); In re Estates of Palmer, 146 Wn.

2010See id.; Tyree, 11 Wash.2d at 580 , 119 P.2d 926 . ¶ 14 Adamec and Tyree called into question the propriety of substituting a liability rule for the traditional property rule in encroachment cases.

2010See id.; Tyree, 11 Wn.2d at 580 . ¶14 Adamec and Tyree called into question the propriety of substituting a liability rule for the traditional property rule in encroachment cases.

2010Id. at 152, 449 P.2d 800 , 450 P.2d 815 . ¶ 16 Our opinion in Arnold grounds this test in the general power of the court to afford equitable relief. "`[E]quity has a right to step in and prevent the enforcement of a legal right whenever such an enforcement would be inequitable.'" Id. (quoting Thisius v. Sealander, 26 Wash.2d 810, 818 , 175 P.2d 619 (1946)); accord Casa del Rey v. Hart, 110 Wash.2d 65, 71 , 750 P.2d 261 (1988); In re Estates of Palmer, 146 Wash. App. 132 , 137 n. 7, 189 P.3d 230 (2008).

2010Id. at 152. ¶16 Our opinion in Arnold grounds this test in the general power of the court to afford equitable relief. “ ‘[E]quity has a right to step in and prevent the enforcement of a legal right whenever such an enforcement would be inequitable.’ ” Id. (quoting Thisius v. Sealander, 26 Wn.2d 810, 818 , 175 P.2d 619 (1946)); accord Casa del Rey v. Hart, 110 Wn.2d 65, 71 , 750 P.2d 261 (1988); In re Estates of Palmer, 146 Wn.

2001The burden of rebutting this presumption is on the party challenging the asset’s community property status, In re Estate of Smith, 73 Wn.2d 629, 631 , 440 P.2d 179 (1968) (citing Rustad v. Rustad, 61 Wn.2d 176 , 377 P.2d 414 (1963)), and “can be overcome only by clear and convincing proof that the transaction falls within the scope of a separate property exception.” Estate of Madsen v. Comm’r, 97 Wn.2d 792, 796 , 650 P.2d 196 (1982), overruled in part on other grounds by Aetna Life Ins. v. Wadsworth, 102 Wn.2d 652, 659-60 , 689 P.2d 46 (1984).

2001The burden of rebutting this presumption is on the party challenging the asset’s community property status, In re Estate of Smith, 73 Wn.2d 629, 631 , 440 P.2d 179 (1968) (citing Rustad v. Rustad, 61 Wn.2d 176 , 377 P.2d 414 (1963)), and “can be overcome only by clear and convincing proof that the transaction falls within the scope of a separate property exception.” Estate of Madsen v. Comm’r, 97 Wn.2d 792, 796 , 650 P.2d 196 (1982), overruled in part on other grounds by Aetna Life Ins. v. Wadsworth, 102 Wn.2d 652, 659-60 , 689 P.2d 46 (1984).

2001The burden of rebutting this presumption is on the party challenging the asset’s community property status, In re Estate of Smith, 73 Wn.2d 629, 631 , 440 P.2d 179 (1968) (citing Rustad v. Rustad, 61 Wn.2d 176 , 377 P.2d 414 (1963)), and “can be overcome only by clear and convincing proof that the transaction falls within the scope of a separate property exception.” Estate of Madsen v. Comm’r, 97 Wn.2d 792, 796 , 650 P.2d 196 (1982), overruled in part on other grounds by Aetna Life Ins. v. Wadsworth, 102 Wn.2d 652, 659-60 , 689 P.2d 46 (1984).

2001The burden of rebutting this presumption is on the party challenging the asset’s community property status, In re Estate of Smith, 73 Wn.2d 629, 631 , 440 P.2d 179 (1968) (citing Rustad v. Rustad, 61 Wn.2d 176 , 377 P.2d 414 (1963)), and “can be overcome only by clear and convincing proof that the transaction falls within the scope of a separate property exception.” Estate of Madsen v. Comm’r, 97 Wn.2d 792, 796 , 650 P.2d 196 (1982), overruled in part on other grounds by Aetna Life Ins. v. Wadsworth, 102 Wn.2d 652, 659-60 , 689 P.2d 46 (1984).

2000Lee v. Lozier, 88 Wash.App. 176, 182 , 945 P.2d 214 (1997) (citing Crescent Harbor Water Co., Inc. v. Lyseng, 51 Wash.App. 337, 341 , 753 P.2d 555 (1988)).

2000Lee v. Lozier, 88 Wash.App. 176, 182 , 945 P.2d 214 (1997) (citing Crescent Harbor Water Co., Inc. v. Lyseng, 51 Wash.App. 337, 341 , 753 P.2d 555 (1988)).

2025Id. at 200 ; see Asociacion de Reclamantes, 735 F.2d at 1521 (recognizing that a territorial sovereign has a primeval interest in resolving all disputes over the use of real property in its own domain). 18 No. 103430-0 The flaw here is that the FSIA was not a codification of the common practice within American courts but rather was meant to codify the real property exception as recognized by international practice.

2025Id. at 200 ; see Asociacion de Reclamantes, 735 F.2d at 1521 (recognizing that a territorial sovereign has a primeval interest in resolving all disputes over the use of real property in its own domain). 18 No. 103430-0 The flaw here is that the FSIA was not a codification of the common practice within American courts but rather was meant to codify the real property exception as recognized by international practice.

2025App. 863, 868 , 56 P.3d 993 (2002) (emphasis added). 15 No. 86399-1-I/16 asserting that an asset acquired during the CIR is separate property . . . must present ‘clear, cogent, and convincing evidence that the asset falls within a separate property exception.’” Morgan v. Briney, 200 Wn.

2024Proctor, 169 Wn.2d at 500 (quoting Arnold, 75 Wn.2d at 152 ). “[D]ue to its equitable nature, the question of whether each Arnold element has been met should be analyzed using the ‘inherently flexible and fact-specific’ equitable power of the court to fashion remedies that do equity.’” Garcia, 190 Wn.2d at 543 (quoting Proctor, 169 Wn.2d at 503 ).

2023“All property acquired during a marriage is presumptively community property, 12 No. 84133-5-I/13 regardless of how title is held.” Id. at 876 (quoting Dean v. Lehman, 143 Wn.2d 12, 19 , 18 P.3d 523 (2001)); RCW 26.16.030. “‘The burden of rebutting this presumption is on the party challenging the asset’s community property status, and can be overcome only by clear and convincing proof that the transaction falls within the scope of a separate property exception.’” Kile, 186 Wn.

2023Id.