gray-large.pngBuck Harrison, the City of Bellevue’s Project Manager, shared an excellent opinion he authored which sheds considerable light on the difference between Boundary Line Agreements (“Agreements”) and Boundary Line Adjustments (“Adjustments”).

The specific call of the question Mr. Harrison posed 2011.07.15 was:

Does a parcel wherein the boundary lines have been altered pursuant to RCW 58.04.007 (statutory Boundary Line Agreement), constitute a “legally created lot” under City of Bellevue LUC 20.20.060 [The City of Bellevue’s Code for Legally Created Lots]?

Mr. Harrison then lays out the three regulatory rules at play: LUC 20.20.060; RCW 58.04.007 (Washington State’s Statute for Boundary Line Agreements); and LUC 20.45B.260 (Bellevue’s Code for Boundary Line Adjustments) before providing his tight analysis. 

Buck states: “RCW 58.04.007 is a remedy for resolving boundary line disputes between adjoining owners without consideration for local land use regulations.” Then he pivots to AGO 2005 No. 2 – March 07, 2005.

This referenced attorney general opinion, which I would suggest anyone toying with the idea of a boundary line agreement read, looks very reasonable. Very reasonable until it comes to its conclusion. The conclusion, which James K. Pharris signs off on with sincerity states:

For instance, an ordinance providing for review to determine whether a document presented for recording meets the requirements set forth in the statute (see discussion above) (or whether accepting a document for recording would be in conflict with some other state statute or state or local regulatory requirement) would not necessarily be inconsistent with the statute. At least where a county can show that its ordinance serves a legitimate purpose and does not frustrate or negate the application of RCW 58.04.007 or other statutes, we believe the ordinance would be upheld. (Emphasis added.)

I find the language “would not necessarily be inconsistent with the statute” to be the height of legal double, or perhaps triple, speak. Let me assist us to go back and forth over “The Razor’s Edge” in an effort to find the “transcendent truth” that must be in there somewhere and hopefully do so without getting cut.

First I will recognize that to mitigate this ambiguous analysis, to his credit Mr. Pharris does indicate: “At least where a county can show that its ordinance serves a legitimate purpose and does not frustrate or negate the application of RCW 58.04.007 or other statutes, we believe the ordinance would be upheld.” “At least” indeed! At any rate, let’s get back to the back and forth.

OK, first let’s note that the entity “Knockin’ on Heaven’s Door(that’s my code for who is asking for the “correct” interpretation) is the hypothetical “charter county” seeking to require county review before the written instrument can be recorded. For those who have yet read the AGO opinion, the salient question posed there is:

[While,] RCW 58.04.007 permits property owners to resolve a dispute about property boundary lines by written document showing their agreement about the location of the boundary line, recorded as a real estate record[, d]oes a charter county have authority to require county review before the written instrument can be recorded?

Instead of saying: Yes! Instead of saying, this action: “appears consistent with the statute.” And instead of saying: No, County’s have no business inserting themselves… .

Mr. Pharris uses a double negative. A double negative which is qualified by its use of the language “not necessarily.” Again the language he uses is: “not necessarily be inconsistent with the statute.

Thank You for clearing up that matter Mr. Pharris!

Well, very much as I almost uniformily indicate in my blog posts, the end result becomes one of Realpolitik. This is to say that City and County governments have taken this extremely squishy opinion; formed their own ideas; and are following through with the “legal force” of their arguments and “muscle”.

In Bellevue, this means that while yes, you can generate a boundary line agreement, if The City of Bellevue is not allowed to “take a peak” at it (at a cost which may be prohibitive to one or both of the boundary line disputants), you will not be able to obtain Bellevue’s “conformanance.”

Conformance” here means that Bellevue will not indicate that the new dimensions of the lots will work out and as such, the county is not going to buy off on the matter either.

Practically speaking what this means is unless you seek out an administrative review, in order to allow a proper Adjustment, you will not necessarily (Ouch, Mr. Phariss now you have me doing it) be compliant with respect to the following:

  • Nonconforming Dimensions;
  • Violation of Previous Action;
  • Transportation Access;
  • Utility Service Access;
  • Tax Assessor Segregation;
  • Tax Revaluations; and potentially
  • Title Company Underwriting.

The cost to gain all that is to have a complete survey of both parcels and unless mistaken sever both properties from any presently grandfathered benefits.

I simply can not see anyone who is already turning purple wanting to come down from their “bliss of rage” to face that prospect. And of course, a prudent client is going to want to have their attorney identify all of their liabilities up front.

[Or, is it that a prudent attorney is going to force them to do all this so that the attorney won’t later get blind-sided by some obscure city, municipal, or county code that wasn’t contemplated.]

To be honest, I am not nearly as concerned with most of those bulleted items, but … as a wise retiring, opposing counsel once said to me: “An uninsurable real property is an unsellable real property!” Now, that is something to take very much to heart. So, …

Go ahead and do an Agreement. And because of the risk that nothing will come of the matter until sometime down the line when everyone is latter confused and you again need to bring in the services of an attorney, make sure that you have your Agreement notorized. See my Parole Agreement post and pay attention to the analysis about the Statute of Frauds.

Finally, it should be noted that whether your Agreement is effective immediately or ten years down the line per RCW 4.16.020 is not settled law.

Piotrowski v. Parks, 39 Wn. App. 37, 691 P.2d 591 (Div. II 1984) holds that an Agreement starts immediately. This is great news for those of you in Pierce and Kitsap Counties. Your Agreements start right away. However, for those in King or Snohomish counties, this case is merely “persuasive.” So, both trial and appellate courts will consider it, but they might decide otherwise.

Wait, isn’t an Agreement, especially one that you have notorized, essentially a contract. Well yes, but because the contract involves land, unless both you and your neighbor stay happily adjoined by a common boundary for 10 years, the subject matter of the contract has not satisfied Adverse Possession’s Statutory Period. The parties will no longer be in what attorney’s call “privity“, and so someone new to the land might come in and push a completely new agenda.

Surveying wisdom holds that you should: “Leave the error where you find it.” In other words, when confronted with an error, recalculate, recalibrate, and relieve yourself of the problems which will undoubtedly occur if you push the error along. [Surveyors indicate that this approach just serves to exponentially compound the problem.] More commonplace is the addage: “A stich in time saves nine.”

Unfortunately, by requiring review, governments seeking to “protect the public welfare” often can serve as significant obstacles to the prospects of dampening down a boundary dispute.

If the result is not that brokered Agreements are sent off to safe deposit boxes for review down the chain, instead of currently recording, the result in many instances may be to force a matter to be filed into Court.

This is potentially very problematic for two diametrically opposed reasons. First, if there is no real conflict. In other words, there is no “actual controversy”, then there is no justiciability. The whole matter is a sham and though you will get your recording once the judge signs off on it, if it ever comes up, both parties and in particular their attorney’s are going to be in very hot soup.

On the other hand, if there is a conflict, filing a complaint raises the stakes. And when the stakes are raised, the potential for a misreading by one – if not both – of the parties increases considerably. The result may be the dreaded “death-spiral” which I detailed in my previous post titled: Is Adverse Possession worth ” The Horror! … The Horror!”? 

There is an old adage which states: “where one stands is a function of where one sits.” Mr. Harrison has a seat in government, I respect him for his stance and at the same time as a boundary dispute lawyer who seeks to damp down conflict, I simply have another.

Ultimately, I think that the Washington State Supreme Court should determine which of these two stances is preferable. Anyone interested in providing the test case? It might not run you north of $100,000, but realistically, you might consider yourself lucky if you only have to pay twice that amount.

Realpolitik – what else can I say?gray-small.png