While attorneys all approach their craft in unique ways, there are several steps that most trial lawyers will do before trial. For me, the pretrial preparation begins when my calender system alerts me that trial is 100 days away. I do the following:

1. Review the entire file (reading the pleadings, correspondence, notes and memorandums that were created during the initial investigation and discovery phases).

2. Identify if there are any steps that need to be completed or updated. This usually involves a review of status of the discovery. Have all the interrogatories been answered? Do they need to be supplemented? Are all the pertinent documents where they can be found? Do we have them all?

3. Update any legal issues. I review the legal issues that were previously identified and update the research that had been done. Were any cases or statutes changed since the original work had been done? Are there any new legal issues that need to be researched?

4. Identify all witnesses. Who will be testifying at trial? It is important to identify which witnesses will be testifying. Outlines of their prospective testimony need to be created. Particular attention needs to be paid to tie the documents and trial exhibits to the specific witnesses that will be used to introduce them.

5. Contact all our witnesses. I send a form letter to all of our witnesses informing them of the upcoming trial date. I follow this up with a phone call to confirm their attendance and also to schedule a time to meet to review their testimony.

6. Settlement. With the wealth of information at this point in the matter, it is a good time to revisit settlement. Both sides might be more willing to discuss settlement and, with the help of a professional mediator, this is often the point when disputes are resolved.

7. Create final pretrial list. After completing the foregoing, I will often put the matter aside for a few weeks. Then, 50 days before trial, the final trial preparations begin. I will write more about those steps in a future post.

Not only during these final stages, but throughout the litigation, it is important for there to be communication between myself and my clients about their goals. I have never had a client with a goal of “going to trial.” Their goals most often concern some underlying interest. Whether it is a lawsuit to recover money (or avoid a claim brought by one seeking money) or concerning a real property boundary, they want to dispute over with and there interests protected. Revisiting their goals, discussing their interests and advising them on the strengths and weaknesses of their positions, happens from my first contact with them, through the end of the representation.

In McCleary, the Supreme Court ruled that the Legislature has failed to fulfill the state’s constitutional mandate to amply fund education. McCleary v. State, No. 84362-7.

The court issued a lengthy opinion authored by Justice Debra Stephens. Justice Stephens summarized the major points of the ruling:

• The judiciary has the primary responsibility for interpreting article IX, section 1 to give it meaning and legal effect.

• The legislature has the responsibility to augment the broad educational concepts under article IX, section 1 by providing the specific details of the constitutionally required “education.”

• Article IX, section 1 confers on children in Washington a positive constitutional right to an amply funded education.

• The word “education” under article IX, section 1 means the basic knowledge and skills needed to compete in today’s economy and meaningfully participate in this state’s democracy.

• The current substantive content of the requisite knowledge and skills for “education” comes from three sources: the broad educational concepts outlined in Seattle School District, the four learning goals in Engrossed Substitute House Bill (ESHB) 1209, 53d Leg., Reg. Sess. (Wash. 1993), and the State’s essential academic learning requirements (EALRs).

• The “education” required under article IX, section 1 consists of the opportunity to obtain the knowledge and skills described in Seattle School District, ESHB 1209, and the EALRs. It does not reflect a right to a guaranteed educational outcome.

• The program of basic education is not etched in constitutional stone. The legislature has an obligation to review the basic education program as the needs of students and the demands of society evolve.

• The word “ample” in article IX, section 1 provides a broad constitutional guideline meaning fully, sufficient, and considerably more than just adequate.

• Ample funding for basic education must be accomplished by means of dependable and regular tax sources.

• The State has not complied with its article IX, section 1 duty to make ample provision for the education of all children in Washington.

• The legislature recently enacted a promising reform package under ESHB 2261, 61st Leg., Reg. Sess. (Wash. 2009), which if fully funded, will remedy deficiencies in the K-12 funding system.

• This court defers to the legislature’s chosen means of discharging its article IX, section 1 duty but retains jurisdiction over the case to help facilitate progress in the State’s plan to fully implement the reforms by 2018.

In a rare move, the Supreme Court retained jurisdiction of the case and gave the Legislature a six year deadline to implement necessary reforms.

This is a historic decision that will have implications for every citizen of this state for decades to come.

When the tenant defaults on rent

If a tenant defaults in rent and reasonably indicates the intention not to resume tenancy, the landlord may enter and take possession of any property of the tenant found on the premises and may store it in a reasonably secure place. RCW 59.18.310(b).

The landlord must make reasonable efforts to provide the tenant with notice which contains the name and address of the landlord and the place where the property is stored. The notice must also inform the tenant that a sale or disposition of the property shall take place pursuant to RCW 59.18.310, and provide date of the sale or disposal. The notice must also inform the tenant of his or her right to have the property returned prior to the sale under RCW 59.18.230.

The notice obligations are met by mailing the notice first class, postage pre-paid to the tenant’s last known address and to any other address provided by the tenant.

The landlord must return the property to the tenant after the tenant has paid the actual or reasonable drayage and storage costs, whichever is less, if the tenant makes a written request for the return of the property before the landlord has sold or disposed of the property.

The sale or disposal may occur 45 days from the date of the notice. Any income from the sale may be applied against moneys due, including actual or reasonable costs of storage.

If the property is less valued at less than $250 the landlord may sell or dispose of the property after 7 days from the date of the notice of sale or disposal is mailed or personally delivered, provided the landlord makes reasonable efforts to notify the tenant.

When the tenant is evicted

The rules change if there has been an eviction. If a writ of restitution has been executed by the sheriff, RCW 59.18.312 applies. The landlord “shall” enter and take possession of tenant property found on the premises, and may store the property in a reasonably secure place, with the option of selling or disposing of the property.

The landlord must store the property if the tenant serves him with a written request to do so within 3 days after service of the writ. Without such service the landlord may elect to store the property. If the tenant objects to the storage, the property must be deposited upon the nearest public property and may not be stored by the landlord.

Before the landlord is entitled to a sale of the property valued at over $250 he must give notice to the tenant via first-class mail or personal delivery. For property valued at $250 or less, the landlord may sell or dispose of the property after seven days from the date the notice is mailed or delivered to the tenant.

How many sellers know that a statutory warranty contains warranties that they are making to the purchaser? How many sellers know that the purchaser might come back to them, sometimes after several years, and claim that one or more of the warranties have been breached?

I suspect very few.

When you are selling or buying real estate, be aware that there are different kinds of deeds.

If a statutory warranty deed is to be used, emphasis should be on the WARRANTY not the deed. Ask yourself if you are comfortable making the warranties contained in the deed.

In Washington when a grantor (seller) delivers a statutory warranty deed, the grantor warrants “(1) That at the time of the making and delivery of such deed he was lawfully seized of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were then free from all encumbrances; and (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same, and such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at full length in such deed.” RCW 64.04.030. A warranty deed has nothing to do with the quality or condition of the improvements—the warranties affect title only.

What does this mean?

Perhaps grantors are most surprised, when years after the sale, a buyer comes back to them and tells them that a neighbor is making a claim to a portion of the property based on adverse possession. Because one of the warranties in the warranty deed is to “defend the title thereto” the seller may be forced to defend against the adverse possession claim. This is not merely an inconvenient matter. Attorney fees in defending an adverse possession claim can reach into the tens of thousands of dollars.

In addition to defense costs, a grantor may be forced to pay to the buyer a sum to compensate for any property lost to the adverse claimant.

If you are buying or selling real estate, pay attention to the form and language in the deed being used. If you have questions, call an attorney.

Provided that the boundary line has been ignored for the requisite period of time (usually ten years), the user can acquire title to the other’s property. What they acquire might be “fee simple” ownership of the property or they might acquire a “prescriptive easement.”

“Fee simple” ownership is, basically, ownership of the property. If the user had “exclusive” possession of the property then they would acquire “fee simple” ownership through adverse possession. An adverse possessor would do something to exclude the true owner and the public from the area of possession. Typically, this would involve fencing in the area.

A “prescriptive easement” would be acquired if the user had made use of another’s property for a specific purpose and the use did not exclude the true owner and/or the public. Prescriptive easements often involve driveways or pedestrian pathways.

The distinction is critical and has far reaching implications. Adverse possession will result in new boundary lines. The adverse possessor’s use of the property will not be limited. A prescriptive easement, on the other hand, will leave the original boundaries in place and the possessor’s use will be limited to the activity that gave rise to the prescriptive easement.

If a dispute arises, claimants may often claim both adverse possession, in fee, as well as the creation of a prescriptive easement. A judge will decide on which result depending on how the evidence develops and is presented.

Prior to 1967 (and even after in the case of agricultural property) real estate contracts were typically used in seller-financed transactions. Sellers stopped using them because the Deed of Trust Act had created a system that was well-balanced between the rights and concerns of lenders and borrowers. They system was clear and unambiguous. The recent housing crises has changed this.

Foreclosing on a deed of trust is no longer efficient and predicable. Recent changes to the Deed of Trust Statute, while most likely warranted, have created uncertainties that were not there before.

Because of the upheaval in the housing market, all the parties in a seller-financed real estate transaction should look at using a real estate contract. These established financing vehicles have a long history which has been relatively undisturbed by the housing crises and the legislative changes to the Deed of Trust Act.

Many Seattle area homeowners, owing more than their properties are worth, are seeking to increase the value of their property with the construction of backyard cottages. These “detached accessory dwelling units” allow homeowners an opportunity to supplement their income or create a guest cottage for visiting friends and family.

The “detached accessory dwelling units” were not always legal. In 2006, the City Council created a pilot program in southeast Seattle. Its popularity led the Council to expand the program in 2009 to the entire city.

Backyard cottages are not for everyone, or for every property. In addition to aesthetic considerations, there are legal restrictions as well. A prospective lot must be at least 4,000 square feet and the cottage can be no larger than 800 square feet. Perhaps most importantly, the property owner must live in either the main house or the cottage.

There are many other rules. If you are interested in having a backyard cottage built on your property, you might start your research with the City of Seattle Guide to Building Backyard Cottages.

Trees are valued in Seattle and legally protected in a variety of ways. Tree protection regulations are contained in the Tree Protection Ordinance, Seattle Municipal Code (SMC) 25, 11, as well as the Environmentally Critical Area Code, SMC 25.09.

Much of Seattle consists of areas designated as “environmentally critical.” These areas include steep slopes, wetlands, streams and shorelines.

Before cutting or removing any trees in Seattle (especially any topping!), a landowner should consult with a certified arborist, experienced land use attorney, or both.

For additional information, a landowner can consult with the Department of Planning and Devlopment (DPD) and the various client assistance memos addressing this topic. You can link to them here.

The Act is designed to give homeowners an opportunity to obtain loan modifications necessary to avoid foreclosure.

Lawmakers hope that the required mediation will lead to a reduction in the amount of foreclosures as well as resolve pending loan workouts.

While the goal of the Act is laudable, I would be concerned that this will increase the length of time foreclosure takes as well as increase its costs.

Read the Act here.

The Huntingtons built their house, well and garage on Noel Proctor’s property. Instead of having the property surveyed prior to building, the Huntingtons mistakenly believed that a survey pin marked the corner of their property. It didn’t, it was actually 400 feet from the true boundary, having been placed there by a prior property owner for purposes unrelated to the boundary.

Mr. Proctor also believed that the pin marked the boundary. Eight years after the Huntingtons built and moved into their home, Mr. Proctor discovered their error when he had his property surveyed.

Negotiations to resolve the issue were unsuccessful and Mr. Proctor sued the Huntingtons demanding that they remove the encroachments.

Adverse possession was not available; the Huntingtons had only been in their home for eight (not ten) years. The Huntington’s argued that they should be allowed to remain and that Mr. Proctor should be forced to sell one acre of land to them. The trial court agreed with them which a 5-4 sharply divided Washington Supreme Court affirmed.

Noel Proctor wanted an injunction ordering the removal of the structures. The Supreme Court noted that historically property rights were enforced without exception and ejectment was routinely granted. More recently, however, Courts had begun enunciating and enforcing a “liability rule” which would require an encroacher to pay damages in lieu of removing the encroachment. They cited Arnold v. Melani, 75 Wn.2d 143, 437 P.2d 800 (1968-69).

The Arnold test is met when the encroacher can establish the following:

(1) The encroacher did not simply take a calculated risk, act in bad faith, or negligently, willfully or indifferently when locating the encroaching structure; (2) the damage to the landowner was slight and the benefit of removal equally small; (3) there was ample remaining room for a structure suitable for the area and no real limitation on the property’s future use; (4) it is impractical to move the structure as built; and (5) there is an enormous disparity in resulting hardships.

The majority felt that the Huntingtons had met these elements. They rejected Proctor’s argument that the encroachment was not “slight.” (See requirement number two). Instead of looking at the nature of the encroachment, the majority reasoned that its relative weight must be compared to the property owner’s remaining land. In this case, Proctor had thirty acres. The encroachment (event though it was an acre) was only 1/30th of Mr. Proctor’s total land.

In a blistering dissent, Justice Sanders (and three others) disagreed with the majority. Their argument being that property rights are sacred and that there are bright line rules that must be followed to protect those rights. The majority is changing the law from one that elevates property ownership to a balancing of the equities.

While this case hardly should be used as a pretext to build first, ask questions later (and when you don’t like the answer look to the court to bail you out). It will be interesting to see how far the courts will go when using equitable balancing tests in real property disputes.

It is these types of cases that make predicting results difficult. Prior to this case one would have most likely assumed that if you discovered someone had built a house on your property (whether mistakenly or not) you could demand that they remove it. Not so anymore.