Both Washington’s House and Senate have recently overwhelmingly adopted newly proposed sections to alter adverse possession, the primary law used to adjudicate land disputes. One problem, the House and Senate versions are similar with respect to two rather insignificant sections, but completely different with respect to the purport of this bill, which is to make the law of adverse possession better. Those wanting a detailed understanding of the similarity and differences may find it here.
But to simplify, the proposed House Bill seeks to: (1) require adverse possessors to meet a higher burden of proof; and (2) allow, but not require, judges to provide costs and reasonable legal fees to the prevailing party. By contrast, the Senate Bill strikes all of that out and leaves in place only a right to recoup the taxes that a title holder has paid on adversely possessed land and the date of the bill’s effectiveness, July 1, 2012.
Ok, this presents an interesting dilemma for House legislators, particularly the ones that have been closely involved in the creation of this bill. The logical options surrounding the current legislative, procedural framework are these:
- Accept the Senate’s version of the bill and maybe, or maybe not, try again later;
- Insist on the House’s version – which might mean losing or gaining everything; or
- Find some common ground – if it exists.
The first option, to accept the Senate’s version, would at least allow the House’s legislative sponsors to claim a bi-partisan victory for itself. Some say that making any changes to adverse possession law is a step, albeit marginal (which is to say not even incremental in my opinion), in the right direction.
The question then becomes, would there be a second bite at the apple? My take is that there would not be. Legislators in both chambers would be saying to themselves: Didn’t this come up last session? Why are we wasting our time with it again now? In other words, if legislators want to make meaningful change, DO NOT accept the version returned by the Senate via its Judiciary Committee.
The second option would be for the House bill sponsors to insist on their language. This is an all or none position. However, after peeling away all the horse swapping necessary for various special interest bills, the legislative mosaic is focused on the budget. As a result, this approach will likely mean a bill that gets put on the back-burner and never gets reconcilled.
The third option would be to seek some sort of compromise. But the result of this again would appear to be another round of jaw-boning. The result? Again, the bill gets no where.
So, what should those legislators in the House do. I say push for a meaningful change that accomplishes the following objectives:
- Correct Washington’s adverse possession law such that land theft is greatly reduced;
- Do not disrupt Washington’s jurisprudence in adverse possession law;
- Do not require a trier of fact to look into the subjective intent of the adverse possessor;
- Provide language comprehensible to all including the general citizenry; and above all else
- Make the law fair and workable for both title holders and valid adverse possessors.
This can be accomplished with this very simple language:
Section 1: In claims of adverse possession, the adverse possessor shall have the burden of proving by a preponderance of the evidence that the adverse possessor has not manipulated the physical boundary line during the adverse possessor’s ownership, possession, or control.
Section 2: These sections shall become effective for all real property purchase and sales made on or after July 1, 2012.
Section 1 simply requires adverse possessors to prove beyond the basic elements that they are not land theives. Section 2 changes the effectivenes from time of filing to onward purchase and sales. As a result, this second section allows real estate agents and brokers to better advise their clients by documenting where boundaries are on the ground at the time of transaction.
Those that waive their right to a survey are then deemed to have also waived their rights to attempt to push back an adverse possessor when it is later discovered that they had actually purchased more land than they thought. This offset to adverse possession is called Mutual Recognition and Acquiescence.
Framing the law in this juxtaposition is similar to the reason why real property buyers have an inspection prior to purchase. If they fail to have one and later find a latent problem, it is their error, not the sellers.
In fact, this is the very reason why an American Land Title Association (ALTA) survey is performed and an endorsement (which is the equivalent of a rider in the health insurance field) is written BEFORE purchase for those purchasers who want the sanctity of their boundaries upheld by insurers. Notably, if the survey reveals any potential encroachments, those encroachments are disclaimed.
At any rate, if we want to have a fair society, one in which buyer’s agents really are looking out for the best interest of their buyers instead of just working as sub-agents for the listing agent (and ultimately just seeking to clear the deal so they can get on to the next one), then House legislators either need to seek to reconcile on this updated language or just give the whole thing a breather.
The reason for this is that it will give the bill’s sponsors a chance to not only draft proper language, but also keep the leverage of an overwhelming vote intact. In other words, instead of saying: Why are we tinkering with adverse possession again? Legislators in both chambers who don’t have their eye tightly on this ball will think: This bill came through overwhelmingly last session, why isn’t it law?
To any legislator reading this who has the temerity to carry forward I offer these two quotes about law and doing one’s duty.
Law is more than the words that put it on the books; law is more than any decisions that may be made from it; law is more than the particular code of it stated at any one time or in any one place or nation; more than any man, lawyer or judge, sheriff or jailer, who may represent it. True law, the code of justice, the essence of our sensations of right and wrong, is the conscience of society. It has taken thousands of years to develop, and it is the greatest, the most distinguishing quality which has evolved with mankind.
– Walter Van Tilbur Clark, The Ox-Bow Incident
There is a moment in every man’s life when he, and only he, with his gifted talents is called upon to perform a special task. what a pity if the moment finds the man unprepared.
– Winston Churchill
To the later I would amplify (with gender neutrality included): “What a pathology it is for the one who has the gifted talents; who is called to perform his or her special task; who is ready to excute the task; but for fear, lethargy, or indifference, decides not to follow-through.”
However, with respect to the former I can only say this is the best type of law. It allows justice! Those people that create the framework for justice are the people that create a lasting legacy by adding to “the most distinguishing quality which has evolved with [hu]mankind.”
The best that I can do is to attempt to seek to influence the influencers and the rule makers. The two sections that I offer will make Washington a better place for us to live more peaceably with our neighbors. Please make your voice, your vote, or both heard. 