Though I have been an inactive bloger since early April, the Washington Legislature and the Governor have been busy. In addition to wrestling with the hard decisions attendant to Washington’s budget, our leaders have continued to work on the adverse possession bill. And guess what? De de le daa … with two clicks you can view it from here!
I believe this new law is very good and will ultimately prompt more reasonableness and settlements among adjoining property owners involved in boundary disputes. Both the why and the how of this is not only important – its critical.
In my humble yet unwavering view, good relationships – or at least neutral ones – with one’s neighbors are required for a healthy society. Moreover, regardless of one’s religion, indifference to, or lack thereof – the prayer line “forgive us our trespasses as we forgive those who trespass against us” is as salient in our society as in any that came before ours as well as those that may follow.
Returning, what the new law allows is for courts to determine when it is appropriate to award reasonable attorney’s fees and costs to the prevailing party.
Here’s a roadmap of what follows. It’s long, so feel free to click forward to that section which interests you. First, I will recap the final process points of the bill. Second, I will indicate why I believe the law is going to work well. Third, I will indicate what changes I hope to see going forward. Fourth, I will pass along credit to the key movers and shakers of this bill. And finally, I will make a few concluding comments.
In my last post, I provided some strategy options for the House to consider after being handed back a bill from the Senate which had struck everything of impactful significance. You can find it here.
Remaining in the Senate’s version, was only the potential for losing title holders to be awarded costs for the amount of taxes which they could competently prove they had paid on the adversely possessed land or forward any tax liability onward to the to an adverse possessor prevailing at trial as appears appropriate to the court. That was and remains a mere triffle.
Well on April 13, House legislators decided to go for broke and sent their bill back to the Senate.
Now, I had testified to the Senate Judiciary Committee, along with lobbyists from the real estate and title insurance industries that changing the burden of proof was a very unwise idea. Specifically, I indicated that it would mean that past jurisprudence in which adverse possession had been found would be second guessed.
Suffice it to say, the Senate Judiciary listened. Yet, while the original increase in the burden of proof language was dropped, nothing was added in its place. Here is the interesting part. When the House sent back the bill to the Senate on April 21, the Senate though allowing two members to be excused from the vote otherwise unanimously decided to allow courts to decide when appropriate to shift reasonable attorney’s fees and costs.
At any rate with respect to the bill, the rest is history. The next day, with the exception of one nay and one excused member, the House fully supported the Senate’s version.
And on Cinco de Mayo (i.e. May 5th), Governor Christine Gregoire signed the bill into law.
Fair warning, we are going to take a bit of a stroll through the legal bramble bush. OK, in law nothing that becomes remotely contestable can be purely construed in black and white. Those that think that it can quickly find that all of their chips are flipped against them as if in a game of Othello.
No, instead of black and white, law recognizes that its rules run along gradient spectrums of grey. In some areas of the law, it is easier to determine where the grey is sufficiently black or white in order to make a quick decision. Procedurally, this is called summary judgment.
However, in the uniquely fact specific arena of property law. Those sufficiently strong gradients are almost always never discernable until the end of a trial. What this means is that it is rather easy to bring a suit of questionable merit (i.e. bordering on frivololity), and yet the case can’t be thrown out. It is like being strapped into a very bad, drawn out roller coaster ride. The result often is that people finally decide the ride just isn’t worth it; they reach for the emergency stop; and they just give up. That’s not justice, that’s unneighborly Real Politik.
So, the new law will reduce lawsuits in two ways. First, people that might think that they would otherwise bring a questionable claim, if rational – an issue itself deserving a blog post, will chose not to do so. Second, the Real Politik strategy of elongating the claim in an effort to both inflict and endure sufficient pain to outlast the opponent will occur much less frequently.
Instead, with the aid and heeded advice of competent counsel on both sides, neighbors in the “middle fog of grey” will find workable solutions. And provided legal counsel both remain committed to work collaboratively to help their clients identify a solution of peaceful resolve, the best interest of both parties can be reached – a quiet peace.
Despite the Legislatures virtually unanimous support and the Governor’s sign-off, ultimately it is the Judiciary that will decide if and how it is going to use this new law. To be honest, adverse possession claims are actions in property fairness that are considered areas of “mixed law and fact.” Generally, yet the law in adverse possession cases is predicated on equity which is the exclusive purview of the courts, which is to say also that it probably does not involve the courts legal powers. The upshot? The legislative and executive branches may not have done anything except to provide the courts an incredibly strong signal that there is a problem here that needs to be fixed.
So, to effectively change the law, courts must now take this nudge and start modifying the law. In addition to the abuse of process due to substantive uncertainty, I believe that there are two other areas where the courts clarify where adverse possession is currently unreasonable.
First, I think courts should add one additional element to adverse possession. It is this. Did the adverse possessor manipulate the boundary to advantage during the course of the adverse possessor’s “ownership, possession, or control”? To drill down further on my reasoning please go here. Notably, courts may determine that instead of placing a new element of fairness upon parties claiming adverse possessors, courts may instead allow this to be a rebutable presumption which title holders may prove to cut down adverse possession claims. Another blog post after additional though would be necessary to look at the pros and cons of that approach.
Moving to the second unreasonable area, I think courts should determine that real property buyers who purchase property with a clearly distinct line should not be allowed to seek a windfall gain when they subsequently have a surveyor come along and tell them about the encroachments. In other words, courts should start to bolster their jurisprudence around the body of law which, like Newtonian Physics, ought to work as an equal and opposite reaction to adverse possession. This much smaller body of law is called Mutual Recognition & Acquiescence. Quite likely, the place to start doing this is by looking at the fairly new boundary disclosures that show up right there at the top of a real property’s Form 17.
In seeking to dole out credit, despite numerous substantive disagreements, I nonetheless have to admit that the top dog is Christopher McKie – founder of End Adverse Possession Now. While Chris takes a stance which is unwilling to recognize that without adverse possession both current homeowners and third party buyers would get hurt, Chris was able to establish enough steam in the previous biennieum to get this conversation flowing with HB 1479 and he was able to keep it going by both applying pressure and seeking out his House Representative, who commands second place on this list, to get HB 1026 back off the ground for this legislative session.
The second most important player has been House Rep. Christine Rolfes. Before pre-filing HB 1026, I had an opportunity to meet with Christine to give her a preview of my Attack on Land Thieves article and talk about adverse possession generally. Ms. Rolfes then worked with House Judiciary Chair Jaime Pedersen to put together the initial language of HB 1026. She also had the good sense to allow Matt Shea, who stands at the far right, to work through some of the initial thorny details instead of seeking to covet this bill in a partisan fashion. This was very important point, the bill now not only had bi-partisan support in the middle, but it also was endorsed by both far-sides as well. Because of this, the bill received virtually unanimous support which virtually ensured its consideration in the Senate chamber.
The person of third most importance, identified immediately above, was Rep. Matt Shea. Matt Shea is a lawyer who took it upon himself to take feedback from the public comment and likely afterwards to modify the bill so that it was not lopsided only toward adverse possessors. Specifically, he rewrote the bill so that benefits would accrue to the “prevailing party” and he removed language allowing the “fact-finder” to determine fairness. After testimony, I flagged this as a potential fatal error to Micheal Barrett of the Real Property Chair of the Real Property, Probate & Trust Section of the Washinginton bar. The reason is because boundary disputes are matters of fairness. Specifically, this means that they lie in “equity” which is the exclusive purview of courts.
The fourth person on the list of primary contributors is my University District Rotary friend, House Rep. Roger Goodman. Roger Goodman is the House Judiciary deputy-chair. By happenstance he was also at the same Senate Judicary Hearing session about to shepard his own bill. Well, he turned to me after my testimony and asked as he had done as my time was running out when I testified in front of the House Judiciary Committee about Mutual Recognition and Acquiescence. After turning it over and over in my mind, the full brilliance of his intuitive feel for the law struck me. After talking with Tim Griffin, at the Land Survey Association of Washington (LSAW) conference about the concept with respect to the purchase of a house, I started to realize the wisdom of remaining out of the “subjective intent/good will” hunt which Washington’s Supreme court abandoned in the 1984 case of Chaplin v. Sanders. Instead, punish those that have physically moved (if putative adverse possessors) or seek to move (if title holders relying on surveys after purchase) to change boundaries of longstanding acknowldegement.
Finally, I believe that Senator Adam Kline deserves considerable credit. After discovering that the language about increasing the burden was dropped by the Senate without adding either good faith or a rule regarding boundary line manipulation in its place, I spoke with Adam Kline. He indicated that he had a lot of respect for common law and didn’t want to make a legislative change that would override centuries of it.
However, when the House did not accept the Senate’s version he worked out, Senator Kline and his Republican colleague modified the bill to maintain the Courts full control while allowing the resounding voice of the legislature to indicate that there is a problem that the courts should be addressing. This is not only a brilliant compromise, it is the golden mean.
Despite the disdain that politicians often receive for their work and their partisan bickering. In areas that really matter, areas that touch us at our most basic sense of right and wrong, across the board they can and they do get together. They get the job done!
And as someone with a fairly deep understanding of the alternative political system that is on the rise right now, I can say unequivocally the ability for our leaders to have robust discussions in which they both listen and speak to the opposing side and then work out an appropriate compromise will continue to lead us in the right direction going forward.
Following Washington State’s Adverse Possession House Bill 1026 from conception through to recorded law makes me realize not only how hard our leaders work, it also makes me realize how superbly designed our system of government really is. Our legislative leaders have now indicated that we need to reassess where we are going to draw the legal lines for neighbors. But, they refrained from crossing the line and usurping the rights that we afford to our judicial branch.
If all neighbors, both individuals and nations, could be so respectful we would have a better world. Congratulations Washington State!