black-big.pngThe vast majority of my posts for the last couple months have been Treatment Level – High. However, today Washington’s Senate exeded vast majority status by unanimously voting to adopt Washington’s Adverse Possession Bill. Great News! … Right?

Well to be honest, I’m not so sure. My uncertainty stems from the fact that the House, which did have one nay sayer, voted on this adverse possession bill, which has one more section than the Senate’s version. Beyond the enacting clause, the same language is expressed as this:

NEW SECTION. Sec. [Y] A new section is added to chapter 7.28 RCW to read as follows:

     (1) A party who prevails against the holder of record title at the time an action asserting title to real property by adverse possession was filed, or against a subsequent purchaser from such holder, may be requirered to:

     (a) Reimburse such holder or purchaser for part or all of any taxes or assessments levied on the real property during the period the prevailing party was in possession of the real property in question and which are proven by competent evidence to have been paid by such holder or purchaser; and

     (b) Pay to the treasurer of the county in which the real property is located part or all of any taxes or assessments levied on the real property after the filing of the adverse possession claim and which are due and remain unpaid at the time judgment of the claim is entered.

     (2) If the court orders reimbursement for taxes or assessments paid or paymen t of taxes or assessments due under subsection (1) of this section, the court shall determine how to allocate taxes or assessments between the property acquired by adverse possession and the property retained by the titel holder. In making its determination, the court shall consider all the facts and shall order such reimbursement or payment as appears equitable and just.

NEW SECTION. Sec. [Z] This act applies to actions filed on or after July 1, 2012.”

Ok, this is something. It allows, but does not obligate, trial courts to: award damages for the time that the adverse possessor has been in possession of the title holder’s land; require payment of unpaid tax assessments; or both.

I guess that this can be construed as something. But, it is a rather marginal something at best.

Yet under no circumstances, would I suggest that trial courts be required to define and award this damage. This is because sometimes an adjoining real property owner purchases the parcel after the adverse possessor, without having had a survey. In other words, the title holder waived their rights and acquiesced to the boundary as represented on the land, not as it is represented in the recorder’s office.

Because of this, these title holders should not be heard to complain when they subsequently find that their boundary appears to be encroached upon when after purchase they have a survey. It’s that simple. And as I said here, this is very often how a land fight erupts.

So, aside from the tax money, which in many cases is not very significant, the only attenuated benefit that I can see by adopting these two sections alone would be the ability for the title holder to claim a quantum of damages. This is because quieting title lies in equity, not law.

What does this mean? Brace yourself. Here it comes… 

IF damages are under $10,000 AND IF the title holder makes an offer of settlement at an appropriate time AND IF the title holder becomes the prevailing party, then provided the adverse possessor fails on appeal – if made, the title holder of the strip of land will be able to gain costs and reasonable legal fees.

I guess stringing that needle is going to help someone out there. But, I can guarantee it’s not going to be a pleasant case … for anyone.

Moving on, the difference between the two bills comes down to the following language:

A new section is added to chapter 7.28 RCW to read as follows:

 “NEW SECTION. Sec. [X]    (1) In an action asserting title to real property by adverse possession, the person asserting the claim must prove each element of the claim by clear, cogent, and convincing evidence.

     (2) The prevailing party in an action asserting title to real property by adverse possession may request the court to award costs and reasonable attorneys’ fees. The court may award all or a portion of costs and reasonable attorneys’ fees to the prevailing party if, after considering all the facts, the court determines such an award is equitable and just.

     (3) This section does not apply to claims of adverse possession brought under RCW 7.28.050, 7.28.070, or 7.28.085.

This type of language works for those special breed of people that work in the ivory tower of academia. Yeah, you know the type … professors. You don’t think for a minute that they were out of office when you thought you might rap an impromptu knock at their door. No, no, no, they have peep holes to help them see what’s outside. That way they can read and write and peep out every once in a while.

Well, guess what. The language of this section is based, at least originally, on a lousy, and I mean really poorly thought through and written legal essay which if you really want to look at, go ahead and find it here.

Now, I don’t have the pedigree of those that work in the academy. But, I have read almost all of Washington State’s adverse possession cases. I have also spreadsheeted them. And I have clients with boundary disputes. Moreover, I too have written, beyond this blog, about adverse possession here.

Perhaps my thoughts and writting is lousy too. But, let’s be very specific. The purpose of changing adverse possession is not to eliminate the doctrine itself. The purpose is instead to eliminate oportunistic land theft by its doctrine. This happens when there is a boundary change made, but the courts find notice where it is absent under the legal fiction of “constructive notice.”

Changing the burden of proof might … might, marginally reduce the improper use of constructive notice. So, it really won’t help stop land theives. Instead, it does nothing more than throw much of Washington’s jurispudence up in the air.

Let me put it this way: “What good is the right to the integrity of the boundaries of land if boundary law becomes less, rather than more, clear?”

Furthermore, let’s posit this question: “What good is it to not have to prove anything as the title holder, if the adverse possessor still has the ability to take you all the way through trial before either of you can figure out where you actually stand?”

Regardless of the proof standard, which again for all practical purposes is immaterial, that’s akin to telling a boxer: “You don’t have to fight! But, you do have to step into the ring … and stay there … until the fights over.”

So, what’s the solution in clear language? Stay tuned; it’s coming soon. [But, if you want a preview, you can find it