Do You Believe in Miracles?

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“Just when you think you’ve seen everything … you haven’t.” Unless my memory is failing that is what favorite sports announcer NBC’s Al Michaels [1] said about Russell Wilson’s turn of a botched snap/catch  – which under most circumstances would have been a 20 yard set-back – into a first down conversion pass to Tyler Lockett that on the next play allowed the Seahawks to get the ball across the goal line in their 10 – 9 wildcard victory over the frost-bitten Vikings.

Well, similarly to the play which caused Michaels’ comment, here’s the set-up of a “just when you think you’ve seen everything … you haven’t” case I recently reviewed. Basically, we have a flag lot [2] which has an recorded easement for ingress and egress – i.e. going in and out – which burdens a portion of it so that another neighbor can use to cross an “intersection” to said flag lot neighbors’ property.

What makes this case interesting is that there is a fence along the neighbor’s easement, such that the owner of the burdened land can not use his “flag pole” to exit his property because he would need to remove not just one, but two fences, running alongside the neighbor’s easement.

Now my initial reaction was that this would legally be an uphill climb for the owner of the burdened land. But, the more questions I fielded, the more I came to understand that the burdened owner has a very strong legal argument.

Basically, notwithstanding the fact that the fences are believed to have been in place for longer than the statutory period and as such the burdened land owner has not used the property, because we are dealing with an easement instead of the fee simple – i.e. full – ownership of land, the legal analysis ought to cut to the owner of the burdened land.

The reason for this goes to the Washington Supreme Court’s unanimous, en banc – i.e. all 9 Justices sitting – decision in the 2006 case of Heg v. Alldredge. [3] Heg basically provides that an easement can only be extinguished expressly by the benefited land owner … and not by mere abandonment. Heg’s rationale is bottomed on the legal determination that the land owner must be put on notice that the land owners benefited by the easement are having their land removed from them.

This is important because certainly if “sticks of property” from the original “full bundle” of property rights can’t be taken from the (property right receiving) land owner benefited by the easement, the land owner burdened by the easement – by necessary corollary – can not be divested of the remainder of those property rights that he or she retains.

Why would this be the case? Because notwithstanding the fact that the fences exclude others and are are out there for the full world to see, the land owner burdened by the easement does not have notice that the land owner benefited by the easement is seeking to extinguish his or her retained rights.

Essentially, the land owner burdened by the easement has given permission to use the land beyond the scope of the easement. And here please recall that permissive use is subordinate to the superior rights of the one who grants it and thus those uses can be revoked.

I suppose it is possible an appellate court would not rule this way. But even if that isn’t how it would decide, this is a valid question ripe with merit for decision. Will I be the one bringing this case for that determination? … I highly suspect not.

The reason is because while this explanation may be a little daunting, I would seek to clarify it if need be and explain along with an offer for opposing counsel to pass to the neighbor that if they want to press it, this is a case which either side could easily appeal and as such legal engagement is the equivalent of mutually assured destruction.

Instead, one would want to work with the neighbor to attack not each other, but the problems instead. Basically, while there are potentially some valid concerns which might be solved (by perhaps installment of a gate to replace the fence), the net effect of opening the private, easement “intersection” so that both parties can use it is a net positive. And this goes to the final point: “The law seeks to allow land to go to its highest and best use.”

Let’s save the miracles for other contests … like an opportunity for the Seahawks to play and crush the “deflate gate champions” in Super Bowl 50!

BTW – That’s not an expression of concern that Seattle will have any difficulty dispatching Carolina and then either Phoenix or Green Bay. No, instead that’s a prayer which goes out to Boston!

[1] The reason Al Micheal’s is my all time favorite sports announcer because of his indelible, 1980 call of the US Olympic hockey team’s 4-3 upset of the Soviet Union – The Miracle on Ice.

Enjoy it [HERE] and then Al Michaels’ recollection of it a quarter century (or more) later [HERE].

[2] Flag lots have the appearance of a flag whereby the main portion of the lot is usually connected by a narrow portion to a roadway. Essentially, instead of having an easement serving ingress and egress purposes – which is in fact what the adjoining neighbor in this case in this particular case – there is a “flag pole” portion of the lot which in place for the purpose of ingress and egress.

[3] See FindLaw’s republishing of Heg v. Alldredge [HERE].

Evaluative Mediation Works – ALLOW IT! — Part I

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Colin Cowherd has a great voice, a great past, and a great message: “Conflict Works – ALLOW IT! [1]. I think Colin has a great point. And yet, I am going to offer some qualifying comments. Comments which some might think are contradictory … perhaps if only to be able to view them in a frame of conflict.

At any rate, Cowherd’s statement that “Conflict Works” is best applied to zero-sum game situations. Situations in which there is usually only one person who is going to come out on top. What’s more these situations are magnified in perceived importance where there is an audience providing feedback. Why?

First, because beyond an individual’s general drive to do well at whatever goal they strive to attain, having rivals with which to conflict and compete allows comparison with which to drive them forward.

Add second a crowd of spectators and you will find that they don’t want to look like jerks not only to themselves and the competitor … but also the universe of onlookers.

Of course, there is a good chance that the difference between having a job that pays big bucks versus what – pushing a broom – keeps one motivated. [2]

But, back to the point. It is because their is an audience of onlookers who pay that gets those in the arena generally motivated. OK, I get it!

I also get that there are some who are extraordinarily motivated from inside. Alright!

Yet not all ‘conflictual universes’ are the same.

It’s one thing if you are being paid millions of dollars to scratch out yards and inches on the gridiron, but do you want to pay someone 10s and possibly 100s of thousands of dollars to scratch out this same distance with your neighbor.

That’s the conundrum people whether they are claimants of adverse possession or the holders of record title come to me about day in and day out. For most, they simply don’t have the money AND YET they are still hell-bent on preventing their neighbors from taking their land from them.

As an important aside, these positions are very often arbitrarily “assigned” by discovery that the “ground truth” is not coincident with the “line of record title” in that often times the fence is either to the left, right, or A, V, or Xs the line of record title. More importantly, both sides have valid intellectual arguments YET even more importantly – I suspect – the motivation is rooted even deeper in our animal brain.

Upshot, at the most visceral level the conflict is real and both parties find themselves precariously teetering in a state of fight or flight.

So Bobby boy, you expect us to fawn is that so? Well kind of … but then again not completely. 

1. A legal fight for most just won’t work, so we kind of have to scratch that off the list … if possible.

 2. The alternative – which is the reason why the cops always respond even though they can’t do much – is to get into an actual fight which may include pulling guns – needs to be scratched off the list lest the cops haul you off to jail.

3. And so this essentially leaves one last alternative – get someone who has the intestinal fortitude to go into the breach of conflict between parties – and help them work it out.

Hey, this isn’t entertainment folks!

This is a job which because it involves managing one’s own clients while at the same time seeking to talk down an opposing client(s) – who may or may not be spurred on by their own attorney(s) – requires several multiples the skills, empathy, strategy, and both intellectual and emotional quotients as those attorneys who simply run down to the courthouse at the drop of the hat.

Is litigation an option? Sure it is. And you know what also? If you are really lucky and you pay a an absolute fortune, you can indeed get yourself memorialized – provided your attorney lines up a nifty new legal angel for you – because your case might then become precedent.

Here let me ask: “Did you read yesterday’s post?” Toward the end I mentioned “the fox case” of Pierson v. Post. Note that it is the precedent, and not the fox pelt for which the whole brew ha ha was conducted that makes a lasting impression.

So, somewhat in Colin Cowherd fashion as a sportscaster who may on occasion let slip that ‘sports are a bit overrated’ type fashion say this: “Your life is short pal.”

First question: “Do you want to squander it fighting with your neighbor?” 

Next question: “Do you want to do it when you can’t financially afford to have the fight?”

Final question: “If you can’t deal with the conflict now, how do you think you will feel on the verge of summary judgment knowing you could end up paying for the displeasure of your neighbor legally cleaning your clock … how about later on when you go to trial?”

“Funny thing” is this very likely … YOU CAN’T!!! 

At the opposite extreme from the self-impugning, no … the self-damning, crossed-up testimony offered by Jack Nicholson’s Col. Jessup in A Few Good Men [3], you probably need someone who while trained to be “on that wall” can outmaneuver those attorney’s who take purely mercenary approach to their job. [4]

Again, while you might think you want someone like Col. Jessup on your team, folks that need to be held by a choke chain have only one direction … conflict.

Conflict is exactly the reason why Col. Jessup ended severing his “decorated” career. He simply couldn’t step back from the conflict brought to him in court and and when fired up under cross examination, he confessed! 

Bottom line, those few feet or inches probably just aren’t worth allowing yourself to get so worked up that you become the One [who] Flew over the Cuckoo’s Nest.

And yet, you still have a problem to resolve … Don’t You!!!

[1] See and hear the radio show from which the excerpt in Cowherd’s television plug is drawn [HERE].

[2] I want to clarify that I have the highest admiration for world class athletes. They are blessed with unique natural and mental abilities which due to absolute focus on their craft allow them ‘deep domain specialty’ which helps everyone else realize as motivational speaker Les Brown says: “It’s Possible!” … SEE [HERE]!!!

[3] See Youtube clip of “The You Can’t Handle the Truth!” video [HERE].

Reader Instruction: Take a moment to ponder what is the opposite extreme of a Col. Jessup. I am going to propose that it is someone who is just on the other side of the “international date line” from him. To wit – someone who though appearing very far on a flat map is actually just across the border when looking at the reality of the global sphere for which the map represents.

Author Instruction: Come back and explore the difference between application of valid authority, invalid authority, and neglect of application of proper authority within the context of Phillip Zimbardo’s The Lucifer Effect [HERE].

Drinking Milkshakes v. Fertilizing Fields

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One of the funniest SNL skits of all time has Mick Jagger revisiting the show where he seeks to figure out what to do in front of Jimmy Fallon who acts as his “mirror.” In the beginning of the skit he does a ‘start me up’ in which he asks himself what he should do considering the fact that he has been on the show in the ’70s; ’80s; ’90s; “and whatever you call this ‘dicade’.” [1]

Well, Mick (and Jimmy’s) ‘rooster’ and ‘pointing my fingers at you’ aside, I am not sure that anyone has settled on what to call the first decade of this century. [2] Regardless, and here is where I am going to stop my throat clearing, one of the most critically acclaimed movies of that decade was Paul Thomas Anderson’s 2007 movie screenplay of Upton Sinclaire’s [3] Oil! Within the screenplay, Daniel Day Lewis acts most forcefully as an antihero within the “I drink your milkshake” scene.

Do you recall the movie? Do you recall the scene? Though normally you can find link outs only below at the end of my post, I make an exception [HERE].

Now if you have never seen the movie before, you might wonder what’s all the fuss? Well, what’s happening is a brutal confession that Daniel Day Lewis’ character – Daniel Plainview – has piped off and thus dried out all the oil from land from which the now destitute preacher Eli is hoping to cut some sort of deal. Lest I forget, this all happens AFTER Daniel gets his initial revenge for previous mistreatment by Eli by forcing him to first admit he is “a false prophet and that God is a superstition.”

Still don’t get it? The straw from which Daniel drinks Eli’s milkshake is akin to a pipeline which unbeknownst to Eli (and the original owner of the holdout property) had all of his oil drawn out by adjoining drilling operations.

How could this be relevant to boundary disputes?

Well, as a practical matter the unknown removal of resources is one heck of an uphill battle to climb. As a legal matter, a lawyer might initially revisit the first week of their first year property class and review the case Pierson v. Post – a/k/a “the fox case.”

In that case, hunter Post likely replete with fox hounds was in chase of his fox. Yet, Beverly Hill Billy style the fox came up on Pierson who by luck was able to shoot it down and scoop it up. Though only a fox pelt, the issue that the New York court had to decide was whether it was the chase or the possession which conferred ownership rights to Ferae naturae – a wild animal.

The upshot is that oil, gas, and water – which have the same quality as animals – in that these each have ‘wild’ characteristics of running off as they will, only become property upon possession.

Returning to the movie – which if you haven’t figured out by now is There Will be Blood – note now added to this theoretical conundrum for poor Eli – who will shortly thereafter have a more ‘serious issue’ – is the fact that even if he was able to convince a court that this precedent should not be applied … what are the quantum of damages? That’s fancy law talk for: “What was the value of the oil which Daniel ‘robbed’ from him?” I don’t know. I also am not going to dwell on that question.

Instead, and here’s the point, please think about the alternative in which instead of drinking the milkshake, it instead gets flushed down the toilet and out to a drain field which is under the neighbor’s land. Well, barring the fact that the neighbor needs some extra fertilizer for the field, and provided that this action is unbeknownst to the true owner, the toilet flusher is going to be up to his or her neck in deep doo-doo.

Why? Remember Adverse Possession requires open and notorious possession. In other words the neighbor who has a drain field which extends onto his or her real property BUT doesn’t know of this fact can not have it divested – again fancy talk for “taken” or as some may further assert “stolen” – from him or her.

What can I say, that’s just the way it is. The hierarchy of laws from lowest to highest are malum prohibitum ([criminally] bad because that’s what the law says). Then there is malum in se ([criminally] bad because it’s morally wrong – i.e. evil). And atop all that is the Doaist-like Zen of Natural Law.

Why is it that way it is? I don’t know. It’s just like the late motivational speaker Jim Rohn used to say regarding impractical questions: “That’s not a class worth signing up for.” [4]

[1] See video – after video commercial – [HERE].

[2] See a panaply of choices for in this article [HERE].

[3] Recall Upton Sinclaire’s best known novel was The Jungle which due to his description of the conditions of the Chicago meat packing houses drove uproar which within a few mere months from publication resulted in the 1906 creation of both the Meat Inspection Act and the Pure Food and Drug Act.

[4] Enjoy Jim Rohn Sharing The Parable of the Sower [HERE].

Does the Law Allow Me to Steal Land?

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Is your name/title/business really Justice Smiles???

That’s really awesome and sort of inspirational! Nicely done!

Well, I’ve got a quick Q for you Mr. Smiles.

Can I pose a theoretical question to you? Let’s say I had been living/camping on another’s property in Washington state (Whidbey Island, theoretically…), and the neighbor’s knew about it and I was always very pleasant and trimmed the grass and took care of the apple trees, although never entering the house and garage on the premises, and this went on for seven years, like the good RCW 7.28.070 code says that it’s long enough to ‘claim’ as an adverse possession?

Would I theoretically provide proof and written statements from neighbors or pictures or stamp collections to the court to prove that I should indeed posses this property?

Would I still qualify for this possession if I didn’t pay taxes on it? But if I had saved up enough to pay off the seven years, could that work?

Sorry loads of questions and hopefully you have some free time to help.

Cheers and may Justice continue to smile on!

OK pal, I’m going to answer your theoretical question.

No. NO. NO YOU CAN’T!

First, did you happen to read RCW 7.28.070? There is nothing in the fact pattern to suggest that you paid the taxes on the property. But even if you had, notice that you need to be their “under claim and color of title, made in good faith”.

RCW 7.28.070 contemplates the situation in which there is some sort of goof surrounding the nature of the document or its transfer from one owner to another. If the purchaser “in good faith” believes that he or she owns the property, actually possesses the property, and pays taxes for 7 years on the property, notwithstanding the initial foul up, the property is theirs.

As a practical matter, this statute is very rarely applicable. What’s more now with RCW 7.28.083, any seller who thinks they can try to unwind a sale after a 7 year period has run its course would be well advised to just give it up and sign a quit claim deed to assure that everything is cleaned up properly and they don’t have attorney’s fees and costs shifted upon them.

Second, your fact pattern indicates permissive use instead of an exertion of any superior claim to the land. Permission nullifies adverse possession and as of April 16 of this year unless you are able to show exclusivity, characterizing your case as one of prescriptive easement will torpedo your ambitions because a legal presumption of permission is thrust upon you per the case Gamboa v. Clark. [1]

Finally for me – but not other arguments – how do you think it is “Just” for you to defect in this situation and seek to steal this land? The answer is: It’s not! You might try it. But certainly not with me and almost just as certainly you will be broken by the attempt as a result.

In that you are “theoretically” on an orchard, perhaps you should forget this legal question and instead contemplate the intricacies of the legal questions raised in the 1999 movie The Cider House Rules. [2]

[1] See original filing of Gamboa v. Clark [HERE ].

[2] See Roger Ebert’s review of The Cider House Rules [HERE].

Fence v. Retaining Wall

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If choosing only a fence or a retaining wall, which would serve to better prove adverse possession? In the above photo we have both. There is what appears (at least from this side) to be a 4 – 5 foot fence in the background. In the foreground is a retaining wall of roughly 1.5 feet which though not failing is well on its way to succumbing to the weight of the land behind it.

Assuming this landowner had a survey performed and found out that the fence line was beyond the line of record title and the fence had been in place for the last 10 years, who would own that strip? Normally with that determined, most of the other facts fall into place. Though the land isn’t tightly manicured, it certainly has been mowed. Also, there is a chair behind the left bush which would suggest the neighbor enjoys sitting in this overall space. Also, it appears that there are limbs of the large central pine tree in an effort to enjoy more natural light. All of these are uses which though not directly within what might be a few feet strip in back or wedge can be used to further buttress the idea that there is ownership to the fence even if the record doesn’t so reflect.

Yet, what if the fence was closer to this landowner than the line of record title would suggest? Well, again it would most likely go to the fence. Though it doesn’t enclose fancy building behind it, it does run a straight line perpendicular to the road. (I know that’s not discernible from this angle, but trust me.) Also, on the other side of it there is a parking lot. So, the use is very different. Again, provided these differences have been in place for 10 years or more, there is virtually no question that the property owner in back would prevail when claiming adverse possession.

Now turning to the retraining wall, note it is much lower than the fence. Though not convenient anyone could jump into the backyard. In fact, with the exception of the wooden rail being on the left side of the stoop – suggestive that it assists the owner to come down the steps as opposed to inviting others – i.e. the majority of others being right-handed – up the steps. Yet, couldn’t one argue that because of the stoop and access that there isn’t exclusive use? Perhaps. And one could also argue that there hadn’t been maintenance of the retaining wall, so how are you going to determine that it is the boundary. In fact, does the boundary run along the retaining wall’s top inside edge or at its toe?

The benefit of having it is the former is that the landowner with the chair is no longer responsible for the retaining wall unless something specific is done which might create issues. This might include planting trees, shrubs, or bushes which damage the retaining wall with their roots. Or this might also be caused if adding more pressure by perhaps installing a swimming pool.

Generally, between a fence and retaining wall it seems that the fence is the greater indication of adverse possession. But let’s note this. First, if the neighbor who owns the fence has placed it so they have space to maintain it and do in fact maintain it whereas the other person leaves their yard in an absolute state of disrepair, is the fence still theirs? The answer is not necessarily. One of the primary reasons for adverse possession is to allow land to go to its highest and best use when someone else doesn’t care for it. In such a case, unless perhaps a protected wetland, the fence will have almost arbitrarily separated it from the true owner … of record title.

By contrast a bulkhead is more of an initial project. Also, though it may be properly placed because of survey to mark a boundary. It may also be placed for the utility of protecting against the collapse of land and as such be placed in a location which most strategically serves this purpose. Going back past ten years to divine those intentions might be rather difficult. One thing that is certain is that neighbors owe each other a duty of adjacent support. This is to specifically say that they are not allowed to have their property negligently fall onto their neighbors land.

This can be a hard pill to swallow though. An upland neighbor very likely will want to delay expending money which will be of little direct benefit for as long as possible. The lowland neighbor though might be sweating bullets with concern that the retaining wall will fail and ruin everything in its path. Notably, don’t expect others to be proactive. Instead, an ‘event’ must occur before you are likely able to get insurance companies to sort out a mess.

Any definitive answers as to which one is better? No. So, if you really want to mark your bounds, consider having a surveyor who will identify the line of record title and then provided you have no cloud on your neighbor’s title or vice-versa and for good measure arrange temporary access with your neighbor on the condition that you will restore any landscaping to as close to its original condition as possible … build a retaining wall built to last and then place a fence on it.

 

Summary Judgment

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Last night I had a discussion with someone who I almost instantly regarded as a friend. At one point during our conversation, we talked about these trees in the picture. Notably, these two trees are located in the planter’s strip in front of my house. More notable yet are the difference in the size of these two trees – the one on the left is much smaller.

This creates a certain amount of dissymmetry in and of itself. Added to this though be the fact that in late July through early August all of the leaves on the left tree shriveled up. Though they didn’t fall immediately, they did all come down with the first hard fall wind. By contrast, the tree to right appeared to cycle through the fall season normally.

The most decisive members of my family indicate that the tree is dead. I don’t want that to be the case – that would really be an asymmetrical detraction!

So, I asked my son and he promptly said: “No, the tree’s not dead; it will be back in the spring.” But then to my question: “How do you know that?” he answered: “I don’t know. I’m just a kid.” With an admixture of pain and joy I chuckled.

So what does this have to do with Summary Judgment? 

First, to be sure that we are all on the same page, Summary Judgment occurs after a lawsuit has been both filed and served but still before trial. It allows the moving party – and here it should be noted that both parties may move – to dispose (i.e. ‘cut-down or sever’) individual claims or possibly the totality of the lawsuit if the Court determines when looking at the evidence most favorably to the non-moving party that there is simply no way that they will prevail at trial.

The upshot of that determination is that the Court determines it is a waste of its time as well as the parties to go through the quite literally “fruitless motions” to come to the same conclusion at trial. As a result, the moving party with the solid case wins and the case is dismissed. [1]

Within the context of boundary disputes if a party is not able to determine whether it can win, it better be able to determine whether or not it will survive a motion for summary judgment.

The reason for this is that if it is unlikely that they will survive summary judgment, it is probably in the best interest to make your peace up front and sacrifice the land to your neighbor. 

Yet, if the matter will survive summary judgment, this can be a huge negotiating tool if properly used upfront. Essentially, one can say: “Look, you’re right, we don’t know if it is you or me who owns this land. So, we have two choices: (a) we can attempt to work this out amicably and be able to continue on as neighbors or (b) we can do the civil equivalent of ‘going to war’ and the endpoint is going to be an Armageddon in our relationship.

Because this is your neighbor, that gives new meaning to oft quoted line from Francis Ford Coppola’s Godfather whereby Al Pacino’s character Michael Coreleone said: “Keep your friends close … but your enemies closer.” [2]

So, now returning to the left tree in the above picture to which I have already pixilated at considerable length in order to drive home the point.

Is that tree dead or not? Or more appropriately within the context of contemplating Summary Judgment, should I cut it down right now or not?

Rather incredulously, my new friend suggested that of the two trees, actually it is the left one which is most healthy! He then went on to explain that it was able to enjoy an early fall because it has no need to ‘grasp’ for more photosynthetic energy produced by its leaves and was able to just … ‘Let it go!’ 

I would like to believe this full stop, but I must admit that I have some reservation. That said, I certainly am not going to cut the left tree down until I am certain whether it is dead or alive next spring. 

If it is the later, I will be very happy I didn’t exact essentially a Summary Judgment upon it. In this situation, why shouldn’t I ‘live and let live?’ I don’t see any cost benefit of not doing so. 

On the contrary, if the left tree does die, I will have to cut it down. And afterwards … I’ll feel compelled to cut down the tree to the right as well.

These trees are neighbors. They either live together … or they don’t!

[1] Parties who believe their case was wrongly dismissed may provide notice to the trial court of their intention to appeal per RAP 2.2(a)(1) generally within 30 days per RAP 5.2.

[2] I am unsure if this language was first published in Mario Puzzo’s book of the same name and upon which the movie is based. Notwithstanding, should you be interested in viewing the movie scene to which I refer, you will find it [HERE].

 

Running with the Land

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Running with the Land is an important “term of art” in real estate law. It means that all takers of the property after (or in legal speak: subsequent to) the current owner(s) must abide by the terms created by the original owner(s).

These subsequent takers may – and often are – specified as ‘all representatives, heirs, successors in interest, and assigns’ to further assure clarity that the drafter’s invocation of running with the land has its intended meaning.

As an aside, this sort of redundancy is very common in English common law where subsequent to the Battle of Hastings of 1066 – which was won by the French-Normans lead by William II over King Harold Godwinson  – legal parlance often included both the English and a Latin or French translation together. [1]

Returning, Running with the Land language signed on an agreement by real property owners in front of a notary and then recorded with the County Recorder elevates the status of the agreement – from being enforceable only between the individuals signing on the line – to one which is enforceable to all people later taking an interest in the land.

Privity of Contract is the non-elevated case. This simply means as soon as one of the two parties no longer has an interest in the property contemplated within the agreement the agreement becomes non-existent.

In a real property setting, this appears most commonly where there is a Lease. Less commonly, this can also occur where there is permissive use by License.

By contrast, agreements made to Run with Land often include: Easements, Reversionary Interests, and CC&Rs (“Covenants, Conditions, & Restrictions “). [2]

These tools can often be used to very particularly carve out necessary rights and duties of neighbors to resolve conflict. Thereafter everyone who takes the real property, whether they have actually reviewed the language or not, are held to the terms because they are deemed to have been placed on constructive notice as to any recordings referencing the real property.

Upshot of all this is that one should very carefully consider present needs against potential problems down the road.

Although well-trained, attorney’s are not omniscient and as a result there is no such thing as a bullet-proof contract. Much less bullet-proof is an agreement which is to extend to eternity.

Yet, having an attorney who understands the proverbial ‘lay of the land’ is likely best placed to help you recognize any bend in the road ahead … and help you navigate it.

[1] Legal Doublet examples include: Aid and Abet, Breaking and Entering, Cease and Desist, Full Faith and Credit, Indemnify and Hold Harmless, Liens and Encumbrances, True and Correct, and Will and Testament.

[2] Though CC&Rs may appear in just about any recorded document, they are most often found recorded to govern Home Owner’s Associations. Careful legal review of HOA CC&Rs should be done before purchasing any property subject to their terms.

 

Thomas-Kilmann’s Conflict Mode Instrument is Illustrated by “A Quiet Man”

The 1952 movie titled A Quiet Man stars John Wayne. In this – the pub scene – John Wayne’s character who has returned from America to Ireland to reclaim his family farm is analyzed by moving though the five conflict-handling modes identfied by Thomas-Kilmann.

These modes are designed on a two-dimensional scale in which, Thomas-Kilmann place cooperativeness on the x-axis and assertiveness on the y-axis. The results are specifically:

  • Avoiding = Uncooperative + Unassertive
  • Accommodating = Cooperative + Unassertive
  • Compromising = Somewhat Cooperative + Somewhat Assertive
  • Collaborating = Cooperative + Assertive; and
  • Competing = Uncooperative + Assertive.

Kilman Diagnostics is a website which indicates it is “Dedicated to Resolving Conflict
Throughout The World.” Check it out to find an assessment guide and to learn more about that purpose. As noted above, competition is not the only way to address conflict.What do you think?

Motivational Comments about Bartleby the Doc Reviewer

NW Lawyer’s issue this month has an article titled: With Kings and Counselors, Bartleby the Doc Reviewer. In it Garrett Oppenheim compares the modern day life of a document reviewer to Herman Melville’s 1853 tale “Bartleby the Scrivener”. [1]

To clarify for non-attorneys, a doc reviewer is a lawyer who helps to determine which documents are relevant during discovery. Its tedious, boring work which is not the highest and best use for any attorney. But, even though there are ways to funnel much of the work down now through eDiscovery, it is still essential for someone to do this type of work. 

That’s the point. It is work and it is something which needs to be done. Because of this it has value to both the person paying for its performance, ultimately the client, and the person performing it.

The fact that …

[L]ike every other attorney in Washington, document reviewers have undergone the rigors of a law school education and, upon graduation, studied for and passed the daunting challenge that is the bar exam.

is of absolutely no moment!

The supposition that …

Doc review attorneys have worked just as hard to get their licenses as their counterparts arguing at the Supreme Court, prosecuting capital murder cases, and teaching the next generation of lawyers at universities.

is not true.

Some lawyers, perhaps because they are just more gifted at research and writting, or had better family connections coming out of law school are very fortunate to have had some sort of assist to get them started on their career.

On the other hand, some people worked their heart out in law school and this is what got them ahead of others and on to law review where they had the privilege of determining whether a comma was errantly italicized or not. These people did the work there and in doing so proved that they could be trusted in law firms … and were able to get themselves hired.

The fact that there are document review attorneys “who attended Ivy Leagues and those who graduated magna cum laude” doesn’t diminish from these peoples accomplishments. But it sure as heck doesn’t give them an excuse to bemoan the fact that they aren’t doing exactly what they want to do.

It is all in the attitude of Bartleby which is his undoing. When asked to do anything, his reply is simply: “I would prefer not to.”

That is Bartleby’s folly. He allows his preference for inactivity to be declared and as he does this he beats himself further and further down. This is not a “fine” situation. [2]

Listen, I know all to well the feeling. I would suspect many people had it coming out of college … unless they just continued straight on to law school. It’s the false idea: “I’ve made it though school. I got good marks in a major that I’m going to use to light up the world.”

But, the world takes no notice of you. You have this sense that you are irrelevant, that you don’t matter, that your dream can not become reality. Well guess what … you are exactly right.

But, you are exactly right for the wrong reasons. It has nothing to do with what is “out there in the world.” It has everything to do with what you have “in here at your heart.”

  • Don’t let the world put you down. 
  • Don’t let yourself think that your dreams don’t count. 
  • Don’t ever think that the work that you do is beneath you.
  • Don’t worry about what you are now.
  • Don’t worry about what other people are thinking … I can guarantee you they have their own problems they are worried about.

Instead, your job is to plan the work of your future and then work yourself right into your future plan … and beyond.

What do you really want? Figure that out. Then figure out how you are going to get it. Finally, start doing it … RIGHT NOW! [3]

You want to put your degree to use. For crying out loud, take a break from your work, go to the managing partner’s office and politely demand a time to talk about your career. You think they won’t allow it?

Maybe your right, maybe they won’t hear you out. Or maybe they will give you 2,3 minutes of their time and when you make your pitch they will with a chuckle dismiss you.

Are you going to allow them to do that to you? Hell no, that’s just a test of how bad you want it. Schedule an appointment for the next day. And if you can’t get on the schedule enlist the help of their assistant to find out when they will be coming in.

What’s your job, each and every day ask them again if you can have a moment of their time. That’s foolish you think. Well its not as foolish as getting the job doing higher end work.

How about this, try this for 30 days. If you haven’t succeeded by the last day ask yourself ho bad has it been? Are you really that much more worse for wear? No way, you could easily go on for another 30 days … and another 30 days after that. BE FEARLESS [4].

It really comes down to who is going to win in this battle of the wills. Let me in on a little secret … you are. Why, because if you are that determined. The managing partner of the firm is not going to deny you.

No, no, no, the managing partner is going to wake up one morning and realize that you are needed. The managing partner is going to wake up and realize that nobody else has the type of determination that you have and that same managing attorney is going to want to make sure you are in his or her stable. 

Don’t be afraid to work hard at a job which seems beneath you. Your learing, your building, and if you push for it you will get out of your rut and finally get some traction in your career. I wish you the best and would invite your comments.

[1] To find the NWLawyer Article With Kings and Counselors Bartelby the Doc Reviewer click [HERE].

[2] To learn “How to stop screwing yourself over” review Mel Robbins Ted Talk of the same name [HERE].

[3] To watch and listen to Van Halen help you realize what is happening Right Now click [HERE]. 

[4] If you really want to make it in this world, don’t be afraid to go after what you want, check out this 9:00 minute video [HERE]. “Go out there, and do the damn thing!”

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