black-big.pngOn Thursday, 2011.01.13, I testified to a few, but certainly not all, of my thoughts related to the proposed Adverse Possession bill – HB 1026. My thoughts were based on an effort to challenge what I perceive to be some of the weaknesses of the bill as presented, while still providing overall support for reform in the law of adverse possession specifically and boundary dispute legislation generally.

Along with a copy of my January 2011 Bar News article A Good Faith Attack on Land Thieves, I presented my own document of suggested legislative language titled “HB 1026 [Suggested Revisions].” The suggestions in that document were sent to each of the Judiciary Committee Members as well as the Judiciary Committee’s panel of non-partisan lawyers. It suggested the following:

1. Remove the archaic adverse possession language at RCW 4.16.020 and replace it in updated form in 7.28 RCW where the other adverse possession language is found. [More on this at numbers 5 and 6 below.]

2. Have the prevailing party, and not simply the recorded title holder, be awarded (a) costs, (b) reasonable attorneys’ fees, and (c) damages from the non-prevailing party.

3. Have offers to settle; which are rejected; and later found to be substantially prevailing as per 4.84 RCW awarded double the award of (a) costs, (b) reasonable attorney’s fees, and (c) damages from the non-prevailing party.

4. Have any frivolous lawsuits as determined by the Court’s interpretation of facts from the fact-finder be awarded treble (a) costs, (b) reasonable attorney’s fees, and (c) damages from the non-prevailing party.

5. Recodify adverse possession’s current interpretation of RCW 4.16.020 within 7.28 RCW as: “actual possession that is open and notorious, hostile, exclusive, and held continuously for ten years … “

6. Finalize the codification of the language above [where it trails off with …] with the language: “in which the ownership is asserted by the party claiming adverse possession in good faith.”

7. Reinstate the Tacking language from RCW 4.16.020 within 7.28 RCW.

8. Specify Tolling as: “Infancy, incapacity, and incarceration shall toll the … adverse possession period until such condition no longer exists.

9. And finally, with respect to the fear of the wrongful payment of taxes, I provided: “The prevailing party in an action involving a claim of adverse possession of real property is liable for any taxes levied on the real property during the period of adverse possession that were paid, levied or both by the other party to the suit that were paid or are owed to the county assessor of the count in which the real property is located up until final adjudication of the matter. Yet, liability will not accrue from a period earlier than six years prior to the commencement of an action whether by service or filing.”

Yet, when I had my opportunity to testify, after acknowledging the Chair, Vice-Chair and Committee in general, I prefaced with my overarching view that aside from legislation related to the improvement of Education; Strengthening Marriage [or Domestic Partnerships for that matter]; and Identifying how to keep the State of Washington Solvent; I cannot think of a more important activity for the legislature to undertake for the general commonwealth than to identify the ideal means of resolving disputes between neighbors.

[Unstated at the time, is the fact that I have worked in many, many different industries as well as overseas in China. So, by no means have an overly myopic view of the subject matter as relates to others.]

I then sought to present the case for when adverse possession is the fair and just course of action because the purchaser of property had a “reasonable expectation” that the land extended to a certain point. later found to be encroaching, at the time of his or her purchase of property.

[Unfortunately, it appears that the politicians are not all that inclined to hear this side of the story as the goal apparently appears to be to class these folks as the kindred spirits of squatters.]

Afterward, I attempted to address some of my specific recommendations. However, I did not get very far beyond suggesting pulling RCW 4.16.020 over to the realm of 7.28 RCW before House Judiciary Chair Pedersen sought to cut me short. Not completely abashed, I did quickly follow up before yielding by indicating that changes in the laws of adverse possession will not act in a vacuum and that the legislature should also consider their interaction with the five other principal boundary dispute alternatives which I specifically recall naming as: Parole Agreement; Common Grantor; Estoppel in Pais; Mutual Recognition and Acquiescence; Common Grantor; and Prescriptive Easements.

Was the effort a success? Well, it is much too premature to say that. However, last Thursday, 2011.01.20, the Judiciary Committee slated HB 1026 on the executive portion of its committee meeting. I will relay those results in what appears to be a necessary Part