Last year, I suggested that people might consider taking over a small gift to the neighbors here. This year, I will go a step further and suggest that you invite your neighbors to your holiday party. Why?
Well, perhaps the late Philadelphia reporter Franklin P. Jones said it best.
Nothing makes you more tolerant of a neighbor’s noisy party than being there.
The opposite applies too, don’t you think?
I did a Rotary make-up at the University Sunrise Club of Seattle this morning. The guest speaker was Washington State Attorney General Rob McKenna who of course is running for Governor in 2012.
Toward the end of the meeting and after a considerable preamble in which after acknowledging that it was a federal question; that while America had been a country of “outside-in” China is now moving forward on an “inside-out” strategy; and particularly in light of the fact that we were sitting at Ivar’s Salmon House at north Lake Union – a stone’s throw from the University of Washington: what was his stand on immigration?
McKenna’s response did not at all resemble the type of backward, hateful thinking coming from the South. No, instead Mr. McKenna suggested that everyone that receives an advanced degree should have a green-card stappled to it.
Interesting you say. How might this colorably affect boundary disputes, neighborliness, or both? Well, wouldn’t this mean that there are more people that live next to each other that might not have quite so similar backgrounds?
Sure, but I would suggest young students who are educated in the United States are the ones best acculturated to the US. Moreover, notwithstanding the chasm that exists between our region and some other regions of the US, in my humble opinion, these culturally adept world citizens are not at all bad to have as neighbors – they broaden our reach of understanding in a changing globe. What do you think?
Erica C. Barnett of PubliCola has offered their readers a news alert that I would like to echo. In a piece titled Council Committee Raises Heights in Roosevelt, she explains:
The city council’s land use committee just voted to raise maximum building heights on three blocks adjacent to Roosevelt High School to 65 feet, rejecting an amendment by council member Nick Licata to limit heights on the so-called “high school blocks” to 40 feet.
The committee’s vote to upzone the blocks, part of a larger vote to change the zoning around the planned Roosevelt light rail station, came after a lengthy round of testimony from supporters and opponents of the upzone.
Andrew Miller, a Roosevelt resident, said allowing six stories (instead of four) across from the recently renovated Roosevelt High School would tear “the heart and soul” out of the neighborhood, which he argued would be “like a body without a heart—you can’t live that way. …. You told us we were being emotional. How would you defend your own heart and soul?”
OK, let’s unpack this a little bit. First, will it affect the neighborhood? Yes, of course it will. As mentioned, there are going to be many more people that can live there and take their children to school before taking light rail to work. Isn’t this the benefit of mass transit? Mass transit allows greater population density.
But, looking at it from the point of view of long-term residents, its not hard to see why the debate would be heated. In addition to the characteristics of the Roosevelt neighborhood changing, you can expect that there is going to be frustration as views may be lost.
Most certainly though, generated will be noise and pollution attendant to residential and commercial development – as well as that of the actual Roosevelt light rail station. So then, will all this make the neighborhood more livable? If so, when? 
Litigation holds seek to preserve evidence that might otherwise be destroyed. I know very little about this subject, so if in need I would seek counsel from K&L Gates E-Discovery Group conveniently located here in Seattle.
Yet, of the limited knowledge that I do posess, I am to believe litigation holds are issued almost exclusively in the corporate environment in order to protect a company from being labeled a spoliator which then allows the Court to render any spoliated documents to have the full negative effect claimed by the opposing party attached to them.
The classic example of a spoliator is ENRON, from those pre-2008 halcyon days when the elimination of a few huge companies did not bring on the toppling of the U.S. economy too.
Yet, I have two questions. What happens when a putative adverse posessor seeks to further alter the land prior to asserting a claim in an effort to more sufficiently fulfill the required elements? And, what if the title holder seeks to destroy that same evidence?
Now if we consider that spoliation involves the destruction of one’s own evidence, the adverse possessor would be off the hook. He or she is creating false evidence – not destroying valid evidence. Which leads me to wonder what claim would apply here – especially if the case is already under way?
Separately, could the title holder, say by destroying a fence on his or side of the property line, be committing an act of spoliation?
We can be certain that the adverse possessor is going to claim RCW 4.24.630 which would shift attorneys fees and costs as well as provide for the replacement of the fence if the Court finds that this was a wrongful act.
So here’s the thought, if the fence was removed, couldn’t one argue that the Court should consider this an act of spoliation and as a result, deem its destruction in the light most favorable to the adverse possessor? If so, this would automatically trigger RCW 4.24.630, right?
Well, I guess this is something that I’ll leave for the ivory tower of academy to take up, if someone there so desires to do so.
But, instead of just destroying a fence when there is a posibility of a boundary dispute, I would recommend having a surveyor get out to one’s place and at the very least ‘shoot the line’ of the fence AND establish the boundary line before taking the fence down. What do you think?
In preparing for conference seminars that I will be giving early next year for the Land Surveyors Association of Washington (“LSAW”), I found a quote in a Washington Supreme Court decision that is perfectly apt for any type of boundary dispute case.
In Hudson House, Inc. v. Rozman, 82 Wn.2d 178, 179 509 P.2d 992 (1973) the Court states: “It is an old saying that ‘a picture is worth a thousand words’ and the same is true of a map.”
So, I have to scratch my head a little when after reading this that I find the electronic service that I use to retrieve cases which is offered to all bar members – albeit for free – at the end of the opinion candidly indicates:
(Image Omitted)
Now, I haven’t gone to the library – yet – to see if this image appears in the case reporters, but if it doesn’t then I think that it should going forward. What do you think?
A Lis Pendens is the filing of notice that a lawsuit has been commenced against a real property owner. This is a recorded document that is filed against the property, not at court, along with all the other documents such as deeds, boundary line adjustments, easement, covenants … at the county auditor or recorder’s office which normally receives such documents regarding real property.
The purpose for filing a Lis Pendens is to provide constructive notice [which you may recall from my Hogan’s Hero’s Sargent Schultz analogy here] to all potential future property owners. This puts any prospective property owners on notices that should they purchase the real property, they will be deemed to have purchased it subject to the lawsuit. As a result, these purchasers must abide by the outcome of the lawsuit instead of being able to claim that they are bona fide purchasers without such an obligation.
Use of a Lis Pendens is a procedural doctrine previously outlined in Civil Rules – CR 3(d). Yet, go there now and you will be pointed to two statutes. The later, RCW 4.28.160 regards how a lis pendens effects the rights of unknown claimants and heirs and thus more applicable to probate.
More importantly CR 3(d) points to RCW 4.28.320 which specifies when a lis pendens can be timely and applicable filed [or for clarity perhaps the better term would be recorded]. With regards to boundary dispute matters, these are resspectively: (a) following commencement of an action [which can be performed first by filing or service of process (so long as the other task is completed within 90 days)] and (b) by recording the notice within 60 days after service on person or by publication.
[Here, I will note that any real estate case in which you are seeking service by publication is likely either sufficiently complex, bizarre, or both that you should be working with competent counsel.]
What do I thing about Lis Pendens? Well, while they are an excellent means of creating leverage against another property owner who just happens to be in in your crosshairs, Lis Pendens also very possibly will have the effect of slandaring title and thus drawing a counterclaim.
Now assuming that you are willing to take that risk by using such a blunt legal construct, there is another line of thought to ponder. Doesn’t the effect of slandaring someone else’s title potentially slander one’s own? And doesn’t doing so to some greater or lesser extent more permanently lock you and your neighbors into litigation stances? And again, who is now going to purchase that house and relieve you of an adjoining property owner who just happens to also be your enemy?
And say you do resolve everything and you remove the Cloud on Title that recording of your Lis Pendens has created. What next? In other words, who is going to want to purchase a property knowing that the neighbor – i.e. YOU – are going to be ‘neighbor(s) from hell’?
Do you get my point! Why would you want to make it more onerous for your neighbor to move away from you?
No, instead consider alerting the neighbor’s real estate agent of the issue(s) and seek for them to resolve it. If they don’t properly react, ask for them to have the Form 17, which discloses potential and latent defects, to specify that there is a boundary dispute.
To put a little more (nuanced) muscle behind this, have a real estate attorney – preferably one who works in the arena of resolving warring neighbors’ issues – send the letter. If that attorney is one who properly crafts and drafts the letter to balance ‘carrots and sticks’ (one of which may be the recording of the Lis Pendens after the agent has failed – thereby potentially allowing you another target), you will hopefully be able to gain your result without exposing yourself to a lawsuit which will run in the 10s of thousands of dollars. Relatively speaking, that approach makes sense … wouldn’t you agree?
My attendance at the Fractional Sections Survey Conference last Friday, has made me painfully aware of the paucity of my knowledge of the survey arts. Well, that’s some one else’s job might be an easy retort. However, to really understand and protect boundary lines as well as protect people from getting themselves caught up in the mire of a needless war with their neighbors, I feel it is incumbent upon me to have a solid knowledge of surveying. Fortunately, this opportunity is coming right up.
The 2012 Career Advancement Program (CAP) is certain to provide the solid foundation that I seek. The CAP’s stated purpose is:
To provide opportunities for survey personnel to learn fundamental and historical surveying principles and procedures, together with foundational mathematical concepts.
Upfront it sounds pretty good. But looking further, I see that the course is really perfectly laid out for 12 weekly 3 hour meetings on Thursday evenings from 6:00 – 9:00 starting January 5 and concluding on March 29. [However, there will not be class on Mar 8 as that is when the State Survey Conference is to be held.]
At any rate, the line-up of topics are respectively: Basic Math I; Basic Math II; Survey Field Notes; Boundary Calculations; Settlement Monitoring; State Plane Coordinates; Positional Tolerance: Introduction to GLO Surveys; BLM Manual 2009; Construction Staking; Riparian Boundaries; and Legal Descriptions.
If you are interested, the cost is $130 for LSAW members and $205 for non-members and the classes will be taught at Renton Technical College. For anyone that is interested in more, I will be willing to forward the information to you. Alternatively, seek out Vic Banks who appears to be the primary impresario of the program, as well as faculty for the first 3 classes. Vic’s contact information is reccexrep@comcast.net.
Jerry Broadus, PLS, Esq. (left) in 2009 authored Washington State Common Law of Surveys and Property Boundaries. Bob Dahl, PLS (right) was the chief editor of the 2009 Bureau of Land Management Manual of Surveying Instructions. This past Friday, they teamed up to provide a presentation to surveyors titled “Fractional Sections: Changes in Attitudes, Changes in Rules, and “Following Footsteps” when Resolving Boundary Problems.
I attended this all day seminar and did my best to keep up. However, the subject matter was obviously designed for its intended audience. As a result, it was like “drinking from the fire hose.” In other words, I think that I am lucky if I was able to take away even 2-5% of the content.
That said, the small overall percentage that I was able to glean was extraordinary. From what I can make out, surveying is not nearly as suscinct as lay people would like to think it is. In fact, when the country was being mapped out in order to grant original parcel patents, so long as 6 mile X 6 mile parcel, and the sections therein, had no more than a 5% error … well, it was fine to just call things good.
While the discussion touched on several topics, the primary analysis throughout the day was how to perform surveys when water from a lake, river, bay, sound, you name it “invaded” the and as such no monument was, nor can be, placed at the proper corners. The next step is how to then proceed to identify how previous surveyor(s) interpreted the situation in order to conform one’s own survey.
So, this is where the analysis of meanders comes. As you know, here in Western Washington there are a number of such types of water, so the seminar was particularily topical to the attending surveyors.
While the information is going to generally be well beyond that which an attorney would use unless seeking to impeach a surveyor acting as an expert witness, the best place to locate these books individually or in combination for reduced price is at the South Puget Sound Chapter of LSAW here.
The American Bar Association Journal this last week – along with indicating a case in which the judge declared that a house was “haunted as a matter of law” [though not fact] – also provided the following couple of tragically comedic case thumbnails:
• A Florida woman sued her neighbor for defamation, harassment and emotional distress because of Halloween decorations that included an insane asylum sign that pointed to her yard and a fake tombstone with an inscription she viewed as a reference to her single status. It read, “At 48 she had no mate no date/ It’s no debate she looks 88.”
• A man who created tombstones lampooning his neighbors filed a First Amendment suit against police for asking him to take them down. One of the tombstones read: “Bette wasn’t ready, but here she lies ever since that night she died, 12 feet deep in this trench, still wasn’t deep enough for that wenches stench!” The Chicago-based 7th U.S. Circuit Court of Appeals ruled the police officer was entitled to qualified immunity.
Though perhaps funny to the outsider, isn’t this really poor form? It would be interesting to know if these cases were precursed or followed by boundary disputes.
At any rate, time now to move from Halloween to All Saints Day. As always, unless your neighbors have generated absolutely intolerable situations, seek to keep your relations with your neighbors peaceful, harmonious, and hopefully friendly!
Earlier this month I wrote a post titled Game Theory and the Art of Settlement. Well, this morning I took a few moments to open up the September 3rd – 9th 2011 paper edition of The Economist and discovered an article within “The Economist Technology Quarterly” called Game theory in practice on page 19 [of that insert].
After indicating how predictive some of the game theorists computer models have been. The article explains how game theory can be used to explain why settlements are thwarted. Using the Middle East as the arena of ultimate conflict – which coincidentally might also be considered the world’s preminent boundary dispute(s) – it indicates that the side that first offers its bottom line position, or anchor, generally loses leveraging power. So neither side seeks to make these types of disclosures and the process fails.
The thought is that if there is a trusted mediator, who is able to act on the benefit of both sides and independently gathers from each their bottom line, the mediator can identify the difference (i.e. spread) between their positions and then broker a middle compromise.
As an aside and despite the article’s failure to do so, I will here intuit the polarity of this type of negotiation. It is this. It would not likely be too long after this type of set-up was constructed -particularily if done so with computers as suggested by the article – before opponents would seek to “game the game.” What I mean to say here is that opponents may have a bottom line position which is not as off-set as that of their “opponent”, however they will want to indicate a position which is as off-set as possible without being rejected out of hand. If so, wouldn’t this bring us straight back to the “win/lose” types of negotiations under which most people already labor?
At any rate, in the article this set of intriguing quotes are offered:
Barry O’Neill, a game theorist at the University of California, Los Angeles, describes how [game theory software] can facilitate divorce settlements. A husband and wife are each given a number of points which they secretly allocate to household assets they desire. The wife may inform the software that her valuation of the family car is, say, 15 points. If the husband puts the car’s value at 10 points, he cannot later claim that he deserves more compensation for not getting the car than she would be entitled to. [And …]
Could software-based mediation spread from divorce settlements … to resolving political and military disputes? Game theorists, who consider all these to be variations of the same kind of problem, have developed an intriguing conceptual model of war. The “principle of convergence“, as it is known, holds that armed conflict is, in essence, an information-gathering exercise. Belligerents fight to determine the military strength and political resolve of their opponents; when all sides have “converged” on accurate and identical assessments, a surrender or peace deal can be hammered out. Each belligerent has a strong motivation to hit the enemy hard to show that it values victory very highly.”
Aha! So that explains why so many boundary dispute lawyers think that they should initiate their contact with their hapless opponents with puffed chests and Tarzan’s call.
Well guess what, this approach might work well until June 31, 2012. However afterward, for those that think that they will carry their adverse possesion case by economic force instead of legal reason, ESHB 1026 – which yours truly provided testimony at both Washington state’s House and Senate Judiciary Committees – will create a “convergence zone of misery”. Why? Because in addition to their own costs of “staging and waging war”, wrongful boundary dispute “belligerents” MAY just find their Court assessing costs and reasonable attorney fees against them too. Now, isn’t that SPE-CIAL!
