Land Surveyors’ Association of Washington Conference

Non-Combative Dispute Resolution Speech Outline

Anecdote #1 – Twin Sisters

Anecdote #2 – Concrete Pad

Mending Wall by Robert Frost  – Mutual Recognition and Acquiescence

Elements of Adverse Possession

  • Open & Notorious
  • Hostile & Exclusive
  • Continuous for Statutory Period (of 10 years per RCW 4.16.020)

Problems with Court:

  • Costs Prohibitively Expensive – An Access to Justice Question
  • “Open & Notorious” should mean easy to determine the contest upfront.
  • Courts generally believe these matters are rather insignificant.

Importance of Asking the Quintessential Question – “Why”

Three Models of Non-Litigious Dispute Resolution

  • Facilitative Mediation
  • Evaluative Mediation
  • Transformative Mediation

“When can boundary dispute problems be best resolved?”

“Why are they not resolved at that time?”

  • Realtor’s Interests
  • Title Insurers Interests
  • Mortgage Lenders Interests

Where will value added increasingly occur going forward?

Beating Your Neighbor Legally Senseless is Good for Them

Many of us are aware of the 10,000 hour rule which Malcom Gladwell pointed out to the world in his book The Tipping Point.

Don’t know what I am talking about?

Well here is a quote apparently about the difference between good and great musicians which I found in my inbox from Brian Johnson of Philosophers’ note a few days ago which will help.

“The striking thing about Ericsson’s study is that he and his colleagues couldn’t find any ‘naturals,’ musicians who floated effortlessly to the top while practicing a fraction of the time their peers did. Nor could they find any ‘grinds,’ people who worked harder than everyone else, yet just didn’t have what it takes to break the top ranks. Their research suggests that once a musician has enough ability to get into a top music school, the thing that distinguishes one performer from another is how hard he or she works. That’s it. And what’s more, the people at the very top don’t work just harder or even much harder than everyone else. They work much, much harder. The idea that excellence at a complex task requires a critical minimum level of practice surfaces again and again in studies of excellence. In fact, researchers have settled on what they believe is the magic number for true expertise: ten thousand hours.” [Emphasis added.]

Malcolm Gladwell
from Outliers

Well folks, as someone who has concentrated my practice exclusively on Real Estate Boundary Dispute matters for the last 8 years, I’ve put in a few hours.

So, though I may not know shinola about a lot of other areas of the law … I probably know this area better than you know the color of your spouse’s eyes!

Yes, I have seen a lot.

Though always game for to swap some new ideas with someone that also knows about this area of law in a robust exchange, the one thing I just can not abide are opposing counsel who help their clients cross the Rubicon – i.e. get beyond the point of no return – when their clients have neither the merits nor the intestinal fortitude to see the matter to its end point.

Notably, this is a litmus test that I put my own clients through. As I see it, that’s simply proper client management.

Not incidentally, it is also why I charge $750 for an initial office consultation. Likely the highest value that my clients pay to me … especially if they really don’t have what it takes to take it all the way. Perhaps I’ll expound on that point further in depth another day.

For now though, I want to return to the lawyer that has been approached by a client and is moving through the motions to sign them up … but doesn’t know this area of law and their client’s case is nonsense. 

In those situations, it’s simply the best course for me to help you beat the smack out of your neighbors early, often, and unrelentingly until they realize this is one pissing match that isn’t going to get negotiated out in a “fair manner” after a period of long negotiation, litigation preparation and its follow through, or both.

Now how is this in your neighbor’s best interest?

Because now they don’t have to continue to pay their useless attorney any more to do “research” on something for which they aren’t possibly going to get results!

Of course taking your neighbor out quickly means that I can be released from your services early too … which is a very good thing.

So, do you want to find out if you can make a mash of your neighbor or whether the opposite will occur to you?

To get a free triage of your case before your neighbor does, please take a moment to connect by answering the questions to this initial assessment [HERE].

 

 

Perception Drives Understanding

What would happen if people identified their legal rights as easily as they could identify their titled boundaries?

This is an interesting question. There would always be gaps and overlaps in understanding. But, just as importantly it helps us to realize how boundary dispute law is such an apt analogy for all law.

So, going to the concrete steps that most people exercise when seeking to figure out their titled boundaries – i.e. the limits of their legal rights – you start by hiring an expert. That expert though is not a lawyer.

That expert is a licensed surveyor who researches their title and that of their adjoining property owners; goes to the land to locate it in relationship with other known and commonly regarded monuments; and then often (but not always) will produce a survey exhibit which at minimum depicts the land and often demonstrates relationships of fixtures upon the land regarding the boundary.

Note for surveyors out there, I know this is a far too simplified identification of the work you do. We can go into many other facets, but let’s keep it simple for this exercise.

Now, with your boundaries determined, those people your boundaries are rubbing up against – i.e. adjoining – should understand them in the same way … right?

Well, this is where an old axiom comes in to do it wonders: “Where you stand is a function of where you sit.”

This is to say that your UNDERSTANDING of the situation is a function of your PERCEPTION of it. And not incidentally, many if not most people believe they are “entitled” to everything they get.

Clarifying, where adverse possession is claimed, each party argues that they are entitled to real property – i.e. the territory of legal rights – along the farthest line of their perception of ownership OR that line which they are advised is theirs as a matter of ownership through their title.

Adverse Possession is essentially the claim: “You didn’t use it (whereas we did) for such a long time that it is unjust for you to seek to take it back and deprive us of it now.

This is why Adverse Possession is considered a Statute of Limitations. Statutes of Limitations are in place to eliminate liability for stale claims so people can get on living their life.

But, notice that the people “sitting” on the other side are also going by that same logic. It’s not that they necessarily want to take away someone else’s rightful property (although I won’t eliminate that as a possibility), it is that they don’t want to have the neighbor take property – “by title” – that is theirs away from them.

And this brings us right down to how we witness a fundamental schism in the law. There is Actual Notice and there is Constructive Notice.

Actual Notice makes perfect sense right? Well, go back up and read about all that gap and overlap business in perception if you thank that’s the case.

As to Constructive Notice, you MAY have heard it before most commonly expressed as the legal expression in Latin no less: Ignorantia juris non excusat. 

For those without working knowledge of that dead language – like me – that bold quote means: Ignorance of the law is no excuse.

The opposite of the same means simply something like ‘Everyone knows the law.’ Really? I don’t think so.

If you have a boundary dispute here in Washington State and want to know more about the law (instead of Latin), take a moment to fill out this Initial Assessment [HERE].

Kettle Logic

Without naming it outright, yesterday I introduced “Kettle Logic.”

This is the term that Jacques Derrida – who came up with the famous line “form is content” (or some such in his native French) and many other concepts of deconstructionism – uses to describe the situation of throwing together a stew of contradictory logical claims.

Kettle Logic for lawyers is when they throw a bunch of contradictory claims or defenses into the pot and make an unpalatable goulash hoping they might be able to prevent a fact finder from figuring out the truth and with it their clients’  liability.

The example provided by Wikipedia on how Kettle Logic got its name is from a reference by Derrida to one of Sigmund Freud’s whacky dream stories about how a man was accused by his neighbor of having returned a kettle in a damaged condition.

As an important frolic and detour, an issue spotting lawyer might just jump in right here to label these neighbors as bailor and bailee. This lawyer might then seek to determine who was the one benefiting from the bailment – i.e. lending or presentment from the bailor to the bailee of the black kettle.

This is because the law gets so specific as to determine different standards of care if the person benefiting because of the bailment was the bailor or the bailee.

To reflect on this bailment point for longer, we are likely to assume that the kettle benefited the bailee perhaps because the bailee for a time had greater cooking capacity.

However, it could have also been the case that the bailor benefited perhaps in the situation that the kettle came available a few days before a family member’s birthday and the bailor wanted it stored to allow it to be a surprise.

Though a side point, if you think like a lawyer you will see doing a neighborly “favor” as a liability. That’s something to “stew on.” (Sorry.)

Returning to the whole point, the bailee offering defenses might come back with the following three provided by that Wikipedia entry … plus a couple more which I offer for good sport:

  1. The bailee had returned the kettle undamaged;
  2. The kettle was already damaged when he borrowed it;
  3. The bailee had never borrowed the kettle in the first place;
  4. The kettle was not the bailor’s kettle;
  5. The bailee did not have legal responsibility over another person who damaged the kettle; and if able to get away without sanction for a patently false claim …
  6. The kettle was not being returned but presented as a gift to the claimant.

Wow? What a mess. It seems what is happening here is that the bailee is creating defenses which will force the accuser to dig in to prove the facts.

All these defenses require that the bailor claimant prove:

  1. The kettle is the bailor’s kettle – i.e. the bailor has title to it.
  2. The bailor’s kettle was entrusted to the bailee.
  3. The bailee received the kettle in good condition (as opposed to the bad condition now claimed to be that of a damaged condition).
  4. The good condition of the kettle was reduced at some point while in the bailee’s possession to a damaged condition.
  5. The bad condition of the kettle occurred because of the bailee defendant’s failed a duty to maintain the kettle in a good condition – regardless if someone else damaged it.
  6. The bailor is actually kicking a gift horse in the mouth … the ingrate!

Even if you take off the final claim and required proof as being too over the top, the point is clear. Offering defenses tests the claimants’ ability to prove their claim.

But this fails to explain why anyone would want to waste their time with alternative – i.e. contradictory – pleadings as the claimant.

Cynically we might rush to suggest the reason to make alternative claims is to create a nice big bog for the lawyers to wade into and start up a muddy war for which you and your neighbors are both going to pay the price. Right?

True, often that attorney who helped you do your will or your aunt’s divorce a few years ago doesn’t know what they are doing and they are going to just attempting to sling it.

But that is not the whole story …

More charitably to other members of the legal guild, the reason is because additional facts might come in during discovery which helps clarify that an alternative claim is correct whereas the others are not.

Alternative Pleading – AKA “Pleading in the Alternative” – basically provides the greatest latitude for claimants to honor their requirement of giving notice to the opposing party as to what the heck they are suing the other over while at the same time being able to later fashion the most proper claim.  

Think of it this way, the exchange of Complaint and Answer is the first (official) foray of a legal skirmish in which claims and counter claims are exchanged in what can then become a long, long legal process.

It is the legal process itself which usually provides clarity as opposed to greater opaqueness in the legal “fog of war.”

Wouldn’t it be nice though if you could “get a bird’s eye view” of the conflict early on so you don’t waste your time getting into “a war you can not win”.

Better yet, isn’t it great when you can dispassionately identify to your neighbors that the boundary dispute will be “a war they can not win” so they should just holster their six-shooters right now so nobody gets needlessly hurt?

Problem is there are no “can not win wars” in the law. Or at least there are no attorneys who will identify that situation for fear they will be seen as having made a guarantee.

Yet if you at least want help handicapping your case, it is worth having a conversation with lawyers who knows how to assess the lay of the land – i.e. Justice Smiles.

If this sounds like you  and you are a Washington State resident, take a moment for this initial assessment [HERE].

BTW – If you feel compelled to see the entry on Wikipedia, you will find it [HERE].

 

 

What Are Legal Elements?

Elements are generally regarded as basic principles or fundamental parts of something. Abstractly we might think of the letters of the alphabet as the elements of a word. Words then become the ‘parts of speech’ used to compose a sentence. Groupings of sentences are used to create paragraphs and then chapters and then books and then volumes and then libraries. I think you get the point.

More concretely, think of a periodic table from your chemistry class. The periodic table identified elements. In turn, these elements are used to make up compounds.

Interestingly, while law uses the complexity of the former – i.e. there are volumes and libraries dedicated to the law – at bedrock any legal claim must satisfy a particular set of legal elements. So …

Think of legal elements as a checklist.

A claimant must check off every fundamental part – i.e. element – of a legal claim in order for the claimant to carry the burden of proof. When this happens, the claimant has demonstrated the other party has failed to fulfill the duty of restraining from doing that which is claimed against them.

This also means that if the party resisting a claim can nullify – i.e. demonstrate the absence – of any element, then that party has successfully defended against the claim because the claimant hasn’t satisfied the burden of proving that failure of legal restraint.

To digress further to regard tactical matters for those resisting claims (generally known as “defendants”), note except for the extraordinarily odd cases in which concentration on nullifying one or two specific elements would diffuse the fact-finders understanding of the facts, all the elements of any claim made against a defendant should be challenged.

Why? Again, because it just takes “knock down” of one element to destroy the claim altogether.

Now on the other side for the claimant, is this idea of seeking to “cover the waterfront” a wise strategy? The answer generally is that it is not.

There may be several differing claims, but at least in boundary disputes, it is generally best to make sure that each claim is distinct and supported by its own facts.

In this way, the facts can be focused to make sure that they are presented most persuasively. Why?

When one is making a claim, one is seeking to persuade that the facts – which we must remember can be undermined – should be recognized in such a way as to demonstrate that each element of the claim are made.

True, the advantage of making inconsistent pleadings is that if certain facts don’t hold up, there might be another way to interpret the facts to allow a similar legal endpoint.

But, if the facts are wishy-washy, perhaps the case is too. In that situation, do you really want your claim to be passed up to the judge to then ask essentially: “Though we don’t know what is going on here, will you figure it out … to our advantage.”

That’s just not real world. And yet, often we see alternative pleadings. Why?

The Practical Boundary LIne

In his 2008 book titled The End of Lawyers? Rethinking the Nature of Legal Services, futurist Richard Susskind in no less than two places speaks of a future in which legal consumers benefit from ‘a fence at the top of the cliff, instead of an ambulance at the bottom of it.’ 

No, no this concept doesn’t relate to lawyers as “ambulance chasers” who gain at the hardship and misery of others. Instead, this is the concept that legal consumers’ understanding and initial understanding will be of greater degree as we go along. There is likely to be as much – if not more money – to be made as a ‘legal fence building company’ than one which rushes victims off to the ER. 

Throughout all my years as a boundary dispute attorney, I have thought and attempted to get people past the wasteful pomp & circumstance, posturing, and overall BS to an understanding of how things will likely pan out if people go all the way to trial. 

So, is there a way to help neighbors on both sides of the line to by-pass all that nonsense of making a legal decision and instead help neighbors to just get right to the solution to prevent a wasteful fight?

Though likely requiring the assistance of a mediator who will visit the neighbor’s property, the answer MIGHT just be yes.  

Here, I’ll introduce my concept of the Practical Boundary Line.

The Practical Boundary Line (“PBL”) is the line of separation between you and your neighbors. 

This means it is where your use of the land ends and that of your neighbors begins.

Sure, maybe you and your neighbor will have differing understandings. But, because you don’t know where your respective legal descriptions will identify lines on the ground, you can hear out your neighbors’ ideas on why they believe the PBL is where it is and you can express your understanding to them.  

If that is hard for either or both of you to do, hire a mediator to assist. A mediator will help both sides to understand the views of the other; keep digging beyond issues purely related to the positional location of the line to interests; and place a cloak of privilege over the conversation so you can have as forthright of a conversation as possible and with it the highest chance of coming to a solution. 

Regardless, once you establish the PBL mark it and move to the next stage determining how to deal with situations if – or more likely “when” – the line of record title does not run along the PBL 

Perhaps there is a zone in which you are comfortable in just allowing the survey to determine the “actual boundary line.” If so, document it and again mark the zone on the ground.

What happens if the survey is outside of that zone? Often, just going ahead and getting an easement (which legally acknowledges a permanent right to use) or potentially a reversionary interest (which legally acknowledges a current, but non-permanent right to use) are fine solutions. 

Or, if line of record title and the PBL are not coincident, are you BOTH willing to negotiate in good faith to allow for a land swap?

Finally, are there outer bounds at which “all bets are off.” Here, think about a situation in which the survey determines that the line of record title runs through your own or your neighbors’ house?

Well, guess what “all bets need not be off” if you and your neighbor can sensibly agree that if this occurred that you will seek a boundary line adjustment or a friendly quiet title action.

Bottom line, if you and your neighbors talk the matter out beforehand, there is a very good chance you can maintain a positive relationship with them, to properly mark the line, and to timely achieve whatever it is that got you to thinking one morning you ought to get a survey.

 

 

Cautiously Evaluate Any Self-Help Option

Self help is the concept that one takes matters into their own hands … and gets them nice and dirty!

Generally, self-help will occur when owners of real property believe certain real property is theirs and they then take some sort of action to clarify that understanding.

What follows often is a call by an affected neighbor to the police who inevitably come out not to solve the problem but rather to confirm that there is not a “breach of the peace.”

Basically, this police call is a precautionary step to make sure weapons don’t come out and that the neighbors simmer down. Ultimately though, the police indicate that the aggrieved party should consult an attorney.

First, notice that the neighbors using self-help “believes that certain real property is theirs”. Here, “believes” and “knows” are different things.

Also, never confuse what a surveyor indicates as your property without first reviewing a sufficiently complete set of facts with a legal evaluator so that you can properly assess the risk that your understanding of your ownership is unfounded and the risks associated with your actions.

Second, notice that the neighbor who is causing the disruption thinks the real property is theirs but instead of speaking to their neighbor “using their words” they just act out.

That sounds like someone didn’t learn how to act in preschool and indeed people who use methods of self-help are often perceived as bullies by the other side.

What this suggests then is that you better be very certain if you are going to make a self-help attempt.

Now these first two ideas should be contrasted with the risk of having the conversation … or more properly correspondence.

[Yes, you should seek to put everything about this in writing. And guess what that means? You guessed it. It means that you should get advice as to what should be in and what should be out.]

Back to the point of the positives associated with the use of self-help, notably it may be more strategic not to signal your intentions to your neighbors beforehand and instead just get in there and do it.

On this score, it is much easier to destroy than to build. The practical upshot of this might be that you remove a fence. But be careful here because removing an existing fence might be determined a wrongful act and thus submitting you to a liability which might create a shifting of attorneys fees and costs.

But you are not done here are you? You now have to get a new fence up … right? And don’t you think that there is a smidge of a chance your neighbors will make it difficult for you to build your fence either by use of legal process or self-help of their own?

Bottom-line, self-help should only be used after extremely careful calculation of the risks and rewards after careful consultation.

Listen, even if you don’t give a hoot about your neighbor, you still owe it to yourself to talk to a lawyer before doing something drastic which is going to cause a rumpus costing untold hand-wringing, several tens of thousands of dollars, and most importantly time.

Of all the insurance that you “might take out” to assure peace of mind, pay for an evaluation and any necessary interaction to prevent what often is a fairly small matter from becoming a major issue which will affect you where you live as long as you are neighbors.

Peace on Earth and Happy New Year 2017.

 

Q: Why Didn’t The Chicken Cross the Road?

20161122.WhyTwoChicken.0822
  • A1: Because he should never have gotten himself halfway into the exercise.
  • A2: Because he brought someone along who wasn’t as committed as he was.
  • A3: Because that someone alone has the good sense to not make the attempt.
  • A4: Because he thinks he can defy norms and conventions; she knows otherwise.

Or, could the answer be …

  • Z1: Because he thought it was the most expedient means to an ends … so why not?
  • Z2: Because she led him on a misadventure which he didn’t have the good sense to redirect.
  • Z3: Because he was paid to escort her across the road despite its treachery and money justifies the risk.
  • Z4: Because he has a yellow umbrella which he thinks will shield him from city-bound traffic at 8:22 AM.

If you are thinking of playing chicken with your neighbor in a boundary dispute, make a commitment to go all the way to the endpoint or don’t start it at all.

Justice Smiles is here to evaluate your merits and to assist you to determine whether the adventure is worth the effort. To start before making a commitment, please fill out less than a dozen questions linked [HERE].

BTW – When I glanced back at these two idiots, they were returning from whence they came. So, they were able to get smart after all.

LexBlog