black-big.pngThe Senate Judiciary Committee gave ESHB 1026 an executive hearing and passed it out of committee today. Not hard to see what happened. Particularly when supplemented with a viewing of the hearing on Washington’s equivalent of C-span here.

[Note: to view only adverse possession’s ESHB 1026’s executive session, select the March 25th date and then scroll into the session to the 15:30 minute mark. Of course, if you don’t want to waste your popcorn, feel free to watch the whole show.]

The Senate Judiciary Committee simply eliminated the original Section 1. As a result, what remains is the cost shifting resulting from the mispayment or misapplication of taxes as originally written (previously section 2 – now section 1) and the commencement date by filing on or after July 1, 2012 which is again as originally written (previously section 3 – now section 2). The final construct can be viewed here.

With considerable misgiving, I have to say that I think that this is still an improvement on the bill as it went into the Judiciary Committee. The idea of changing the burden of proof would have had little to no positive effects, but it would almost certainly create considerable ill effects if allowed.

The reason for this is that judges and the advocates in front of them would no longer know the strength of past allowed adverse possession cases. In other words, under the higher burden, the question asked and certainly second guessed would be: Does this past, positive adverse possession case still have what it takes to measure up? A further result would be that the array of decisions would be much more broad across Washington’s various benches while reversible error would remain low. All in all not a great solution.

However, I am disappointed that the Senate Judiciary Committee did not consider adding alternative language that would address the land theft issue. Failure to generate that fix offers perhaps one of the most extreme example for non-lawyers to hate us. By ommission, we are facilitating the gain of land theives!

OK, time for some disection. Senate Judiciary Chair Adam Kline (D) 37th views adverse possession as a doctrine that revolves around the common law’s understanding of “use it or lose it.” Yet the problem with this is that most of Washington’s adverse possession cases, at least those that are subsequently appealed, are not the agricultural cases for which Chairman Kline expresses concern. Moreover, in my testimony on March 11, I suggested that the Senate Judiciary Committee might consider a separate carve out for farmers if a stricter law was to otherwise be put into place.

Are my views contradictory? No, not at all. Consider the difference between a big tract of forest land and a tract of agricultural land. Forest land has an exception in RCW 7.28.085 because it is a waste of resources to have companies constantly patrolling their properties.

By comparison, farmers are going to be working their land almost certainly at some period over a 10 year (or even 7 year) statutory period. As such, farmers do notice when someone starts encroaching upon their land.

Yet, in the area where problems do most commonly arise – in cities, suburbs, and exurbs – most often people will “nudge” the boundaries a little (or perhaps a lot). Then the question of whether notice – which can and is often claimed to be “constructive” …  ;-)  ;-) … [everyone “Noticed” my “Wink, Wink” right?] comes into play.

And what is the nature of that “play”? The putative adverse possessor with some extra money will hire a mercenary attorney to knuckle down on the title holder. And if both parties have plenty of money, its going to be death by a 1000 paper cuts to both. In other words, the game becomes one not of law, but instead one of Real Politik which you can learn more about from my previously provided comments here.

Bottom line, the Senate Judiciary Committee gave us a literal “Strike One” and a figurative “Ball One” as well. It will be interesting to see if ESHB 1026 will now get pulled to the Senate Rules Committee, where five Judiciary Committee members also hang there legislative hats.

If so, and the bill is then also forwarded to the Senate floor, will we find someone sufficiently passionate about mitigating friction between neighbors to offer another approach that will resolve the issue that the lesser chamber so overwhelmingly sought. In my humble opinion, to make it more difficult for land theives to prevail needs to remain ESHB 1026’s primary