In my January 2011 Bar News article A Good Faith Attack on Land Thieves, I suggested that the best method to attempt to eliminate land theft allowed under the current laws would be to add the element of Good Faith to adverse possession’s 10 year common law statutory interpretation of RCW 4.16.020.
Well, today at 13:30 the Senate Judiciary Committee will be having a public hearing on HB 1026 – now 1026-S AMH SHEA H1553.1. So, I would like to offer our state Senators some information to help them to weigh the benefits of the approach that I suggested as an alternative to requiring proof by “clear, cogent, and convincing evidence.”
As stated in my article, the jurisprudence of Good Faith is highly developed in commercial law. Particularly in negotiable instruments law Good Faith it is defined by §3-103(4) as: “honesty in fact and the observance of reasonable standards of fair dealing.”
This language is important because it allows both an objective and a subjective standard. The objective standard relates to fair dealing. So, the question that would likely arise here would be: is it customary when purchasing real property to have a survey performed? At this time the answer depends on whether the purchase is for commercial or domestic property (i.e. yes and no respectively). Then the subjective component seeks to identify whether things were done on the “up and up” (i.e. honestly).
So, in the context of adverse possession, this would amount to basically needing to prove that one didn’t wrongfully seek to change one’s boundary and primarily whether it remains current custom to waive a survey prior to a domestic real property purchase. Note too that because it is the burden of adverse possessors to prove all the elements, including Good Faith if added, this would be a fair approach to determine land ownership prior to legally divesting title holders of their interest.
The alternative that has been moving forward in the legislature is to change the evidentiary standard from a preponderance of the evidence to “clear, cogent, and convincing.”
First off, it should be noted that the way the bill is written, a land thief may still be able to satisfy all the elements per section one and thus never trigger any of the cost shifting provisions, to which I have no objection, that follow in section two.
Second though, we should ask: What does “clear, cogent, and convincing” mean? The definition provided to the Senate Bill Report for ESHB 1026 states:
To satisfy the preponderance of the evidence standard, a factfinder must determine a fact to be more probably true than not. Under the higher standard, courts have required factfinders to determine that a fact is highly probable.
Yet, by seeking to increase the evidentiary burden, all of the adverse possession cases that have been previously decided in Washington State are now called into question. Sure, the bill will not completely eliminate the jurisprudence developed over the span of our statehood in this area.
However, the upshot will be that lawyers will not know the strength of any of these cases. Result? While the House may take a contrarian view that by working in a vacuum there are going to be more out-of-Court settlements – and that might be true – you can also bet that there is going to be more litigation to define the new contours of this law.
Instead, by keeping the burden of proof the same and adding the element of Good Faith, the jurisprudence, which probably costs on average somewhere between $100,000 – $200,000 to produce per case, remains firm. Yet, the adverse possessor would also have to pass through the additional elemental screen of Good Faith.
This course will yield more justice at less cost to the combatants that decide to come to our Courts and lower costs to our Courts themselves as the Courts determine what this law means. This framework also provides a much more understandable method for adjudicating land disputes. Finally, adding the element of Good Faith provides a more effective means of achieving the reasonable ends of HB 1026 … stopping land theft by adverse possession.