[WSBARP] Legal descriptions - yes, tax parcel #s really may work for platted property (even if that's wrong)

Wed Apr 26 13:36:32 PDT 2023

I am going to send this out because I did not see any further response on
the topic and it is just so important that we all see what is happening to
previously well-settled law. But that doesn't mean I didn't miss another
post - my apologies if I am repeating something. Being on digest I have
been more superficially cruising topics of late.

But, on the legal description issue - I do think things have changed, and
it is super important we all see it happening. So I'll chime in.

I hate to argue this point, as I am so appalled at the fact this is
happening - but while Catherine and Paul both cite well and
long-established Washington law on legal descriptions, Eric is correct in
pointing out that our nice clean rule has been potentially eviscerated by
rogue (or inattentive or defiant) appellate decisions of late. We'll need
the Supremes to weigh in. I think the distinction between platted and
unplatted property obvious, and technically, a Supreme Court decision would
smack down these appellate decisions as not seeing the full picture. But,
who knows - it may use the opportunity to change things.

Meanwhile, to prevail on the previously shoe-in simple argument that lack
of a full legal will not suffice for platted property, you'd have to
persuade the court that these division cases are incorrect. As on their
surface, they "reconcile" *Martin *and *Bingham *by using bits of both to
justify their decision. I definitively think they utterly fail to
"reconcile" the unreconcilable - they have applied a gross misunderstanding
of the law.

But the question is ... now what? especially as we now have a second case
very clearly adopting this rogue line of reasoning. (This one with a pro se
losing party, so perhaps again a case of no one pointing out the critical
missing piece of the analysis to the appellate court?)

Particularly ironic as the initiating troublemaker Division 1 recognized
the distinction just a few years before in not applying the *Bingham
*principles
to platted property. But then ignored it in last year's case. Whether not
brought to the appellate court's attention, or (more cynically) part of the
pattern many have observed of "results-oriented" decisions from Division 1
in particular ... either way ...

But these courts ignored that distinction and selectively pulled statements
from both *Bingham *(unplatted) *and* *Martin *(unplatted) to craft a rule
for *any *property that tax parcel numbers might be ok if the tax records
led you to a correct legal. Never mind the technicalities, the strict
prohibition against parol evidence (which the court acknowledges then
promptly ignores), and supremely strong language of the Supreme Court in
upholding the stringent requirements for platted property.

All that is broad-brushed aside with nary a nod at the abrupt and complete
departure from the law.

Oh, and saying you can also work in a legal if your REETA has it, even if
it wasn't an expressly incorporated document - squarely against *Home
Realty *case cited by Catherine.

Eric referenced an email I wrote, which was on another list but I'll share
here. It's long, but goes through what happened in these recent cases. (And
for reference, below that, I've pulled Eric & Catherine & Paul's previous
statements - which I still personally think absolutely correct, but the
problem is it is no longer assured, and we cannot approach our briefing as
it if is a sure thing anymore, we have to address these recent cases and
show the error - or, take advantage of it, if that's your inclination).

My post from another list (The relevant digest posts from this listserv
below my signature):

Apr. 17, 2023 - 84179-3 - Harlan Meier, Respondent V. Sakuntla Devi,
Appellant
https://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=841793MAJ

We have now seen the first case (I believe?) to reference the *Teklu v.
Setayesh* case of last year (21 Wn.App.2d 161 (2022), where the court threw
open the doors to allowing use of a tax parcel number as the legal
description to satisfy the statute of frauds. With the rationale that it
worked so long as the tax parcel number really did lead to a correct legal
description upon researching the assessor's records (requiring a
significant amount of parol evidence, which is expressly what was
prohibited before).

Of course repeatedly referencing Washington's "strictest legal description
requirement in the country" in the same breath as making it
phenomenally easy to meet.

For those unfamiliar: The *Teklu *case relied upon *Bingham v. Sherfey* (38
Wn.2d 886 (1951)) to say a tax parcel number could be enough, ignoring the
very strict requirements for platted property and the long history
distinguishing the legal description requirements for unplatted property
(as in Bingham) versus platted property (governed by the 6 factors in *Martin
v. Seigel, *35 Wn.2d 223 (1949)).

But, as noted in an earlier Division 1 case (albeit unpublished):

"TMG argues that this legal description is sufficient and cites to Bingham v.
Sherfey, where the court approved a legal description that identified a
property using its tax parcel number. 38 Wn.2d 886, 889, 234 P.2d 489
(1951). The Parks counter that Bingham does not apply, because it
establishes requirements for only unplatted property.

        *The Parks are correct: it is not Bingham, but Martin that
establishes legal description requirements for platted property.* See 35
Wn.2d at 229. The legal description here meets three of Martin's
requirements—city, county, and state—but does not include the property's
lot number, block number, and addition. This is an insufficient legal
description on the four corners of the document. "

*McNaughton Grp., LLC v. Han Zin Park *No. 70064-2-I (Wash. App. 2014)

Yet here we are again, with *Meier v. Devi* jumping on the *Teklu *bandwagon.
And more.

I still think that these cases are contrary to *Martin *and the later *Key
Design, *as they fail to recognize the platted/unplatted property
distinction and thus make decisions that still go against the Supreme Court
decisions upholding the 6 Martin factors. A conflict that ensures ongoing
litigation until that is resolved with the Supremes, but one not even
acknowledged by Division I in these decisions (despite having recognized
the key difference in its earlier case).

I recognize, while this may be heresy, that given what we have been seeing,
it might make one wonder if the Division I court making these 2022/2023
decisions really understood the finer distinctions to begin with ....
though, to be fair, responsibility also rests with counsel. The
*McNaughton *Division 1 of 2014 noticed - and respected - the distinction.
In *Teklu*, it doesn't look like the distinction was ever brought to the
attention of the appellate court, as the court never addressed that
argument. Not that I've never seen the court ignore and fail to address all
of the arguments - but perhaps it never came up. Less clear in the Meier
case whether that argument specifically came up.

And there is yet more to the story.

While in this *Meier *case the tax parcel number isn't what saved the day
for the party wanting to enforce the contract, as the tax parcel number was
wrong - it did break open yet another well-established criteria, which is
that a document with a legal description must be expressly incorporated to
save the day. *See e.g. Home realty Lynnwood, Inc. v. Walsh*, 146 Wn. App.
231 (2008).

But here, in *Meier*, filling out a tax affidavit with a full legal
apparently was sufficient potential evidence of intent to incorporate the
REETA into the contract, thus bringing the legal description along with it.

Really?? FIrst, this was not a document "expressly" contemplated anywhere
in the REPSA (despite the court trying to say so through general
incorporation of future written amendments) - and second, even if you tried
to shoehorn it in that way, since when was a REETA ever "incorporated" as
"part" of the REPSA?

Naturally, despite its tremendous potential import, came out as an
unpublished case.

Mind you - I am not against making the legal description requirement saner
and in line with the rest of the country. But I do hate it when the courts
just ignore the inconvenient finer points and thus turn simple,
well-established law on its head without at least acknowledging that they
are doing so. (Or worse, didn't even notice the finer points - which again
falls on counsel too).

One way or the other - the law has changed, and the courts don't even seem
to see it (or are ignoring the import and just sliding it in) - one way or
the other, not even acknowledging it. So yet another example where lack of
familiarity with a specific area of law leads to confusing that law.

I rather wish the Supremes would grant review of one of these (we'll see if
this one gets a petition for review - probably not, as a pro se on the
losing end) and just flat out clearly state whether they are abolishing the
distinction between platted & unplatted property and creating a global
rule, or that they will stick with Martin & Key Design and make it crystal
clear why these are different than Bingham, directing the courts not to
simply gloss over that tiny preliminary question of whether it is platted
or unplatted property.

But that would be in a world where we actually had some clarity in the
legal realm. That is not the direction things seem to go.

Carmen Rowe

Phone: (360) 669-3576 (direct cell)
Email:  Carmen at GryphonLawGroup.com

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Date: Wed, 19 Apr 2023 19:47:55 +0000
From: Eric Nelsen <eric at sayrelawoffices.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation and Statute of Frauds
Message-ID:
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SA1PR05MB78887D84742FAE43A216EF9EDD629 at SA1PR05MB7888.namprd05.prod.outlook.com
>

Content-Type: text/plain; charset="utf-8"

Cat?I agree in general except for (I?m sure you know) the unfortunate line
of cases springing from Bingham v. Sherfey, 38 Wn.2d 886, 889, 234 P.2d 489
(1951), where a tax parcel number for unplatted land (plus County and
Section Township and Range because the tax parcel number was literally ?tax
parcel #3?), was deemed sufficient. I don?t think lawyers should ever rely
on Bingham and should always draft using a full legal description. But the
cases involving pro se half-oral contracts, plus difficulties where buyer?s
possession plus part performance of oral contracts is allowed to evade the
statute of frauds, keep stretching the rule.

Bingham rests on the theory that a reference in the contract to a tax
parcel number is effectively a reference to ?another instrument? that
includes the full legal, in that case the ?instrument? being the county
assessor records. This exception has caused popular misunderstanding I
think, in part because the specifics of the decision have been shorn off
over time and transmitted merely as ?having a tax parcel number is enough.?
See also Carmen Rowe?s post just a couple days ago, about the latest set of
cases in Division One that appear to stretch Bingham in various ways.

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Catherine Clark
Sent: Wednesday, April 19, 2023 11:50 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation and Statute of Frauds

Nope.  Parcel numbers and street addresses are not enough. Must be a full
and accurate legal description

They don?t call me a title geek for nothing!

Catherine ?Cat? Clark
Law Office of Catherine C. Clark PLLC
110 Prefontaine Place South, Ste. 304
Seattle, WA 98104
Phone: (206) 838-2528
Cell: (206) 409-8938
Email: cat at loccc.com<mailto:cat at loccc.com>

NOTICE: The information contained in this electronic information
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you are hereby notified that any use, dissemination, distribution or
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From: michael westseattleattorney.com<mailto:michael at westseattleattorney.com
>
Sent: Wednesday, April 19, 2023 11:23 AM
To: WSBA Real Property Listserv<mailto:wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Litigation and Statute of Frauds

Interesting. I think it was about 40 years ago when I was a Broker, I was
told that it was sufficient if the conveyance had the parcel number. The
std was something like what would a normal land surveyor use to find the
property.

[cid:image005.png at 01D972BA.21D91A60]

From: wsbarp-bounces at lists.wsbarppt.com<mailto:
wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com>> on behalf of Catherine Clark <
Cat at loccc.com<mailto:Cat at loccc.com>>
Sent: Wednesday, April 19, 2023 9:33 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:
wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] Litigation and Statute of Frauds

>From a trial brief I just filed

If the agreement lacks a proper legal description, it is void.

The statute of frauds for real property provides, ?Every conveyance of real
estate, or any interest therein, and every contract creating or evidencing
any encumbrance upon real estate, shall be by deed ? .? RCW 64.04.010<
https://plus.lexis.com/document/?pdmfid=1530671&crid=24ded445-176c-452f-9b50-7a2f3d8b9547&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A4VK8-WNS0-TXFX-X21H-00000-00&pdcontentcomponentid=10841&pdteaserkey=&pdislpamode=false&pdworkfolderlocatorid=NOT_SAVED_IN_WORKFOLDER&ecomp=174k&earg=sr1&prid=e0a597d4-d856-4e55-a402-2aa4770e992e>.
Every deed ?shall be in writing, signed by the party bound thereby, and
acknowledged.? RCW 64.04.020<
https://plus.lexis.com/document/documentlink/?pdmfid=1530671&crid=0a1b0bdd-c6f5-467d-a82d-8cc6bb91bb44&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A55D0-4NB1-F04M-B05S-00000-00&pdcontentcomponentid=10841&pdproductcontenttypeid=urn%3Apct%3A30&pdiskwicview=false&pdpinpoint=&ecomp=2gntk>.
Deeds !
 of trust must comply with all mortgage laws (RCW 61.24.020) and the real
estate statute of frauds.  GLEPCO, LLC v. Reinstra, 175 Wash. App. 545,
554, 307 P.3d 744 (2013) (?Deeds of trust and trustee's deeds are subject
to the statute of frauds.?).

It is the unusually strict but well-settled rule in Washington that to
comply with these statutes, real estate subject to a conveyance must be
described in sufficient detail that the court is not compelled to resort to
extrinsic evidence in order to find out what was in the minds of the
contracting parties. Martin v. Seigel, 35 Wn.2d 223, 228, 212 P.2d 107
(1949)<
https://plus.lexis.com/document/documentlink/?pdmfid=1530671&crid=0a1b0bdd-c6f5-467d-a82d-8cc6bb91bb44&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A55D0-4NB1-F04M-B05S-00000-00&pdcontentcomponentid=10841&pdproductcontenttypeid=urn%3Apct%3A30&pdiskwicview=false&pdpinpoint=&ecomp=2gntk>;
Key Design, Inc. v. Moser, 138 Wn.2d 875, 883-84, 983 P.2d 653<
https://plus.lexis.com/document/documentlink/?pdmfid=1530671&crid=0a1b0bdd-c6f5-467d-a82d-8cc6bb91bb44&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A55D0-4NB1-F04M-B05S-00000-00&pdcontentcomponentid=10841&pdproductcontenttypeid=urn%3A
!
 pct%3A30&pdiskwicview=false&pdpinpoint=&ecomp=2gntk>, 993 P.2d 900 (1999)<
https://plus.lexis.com/document/documentlink/?pdmfid=1530671&crid=0a1b0bdd-c6f5-467d-a82d-8cc6bb91bb44&pddocfullpath=%2Fshared%2Fdocument%2Fcases%2Furn%3AcontentItem%3A55D0-4NB1-F04M-B05S-00000-00&pdcontentcomponentid=10841&pdproductcontenttypeid=urn%3Apct%3A30&pdiskwicview=false&pdpinpoint=&ecomp=2gntk
>.

Kofmehl v. Baseline Lake, LLC, 167 Wn. App. 677, 689-90, 275 P.3d 328, 335
(2012) (emphasis added.).

Washington courts have long held that to comply with the statute of frauds,
a deed conveying land must describe the land conveyed in sufficient detail
that it can be located without recourse to oral testimony (unless the deed
refers to another instrument that does contain a sufficient description).
Bigelow v. Mood, 56 Wn.2d 340, 341, 353 P.2d 429 (1960). An agreement
containing an inadequate legal description is void. Howell, 28 Wn. App. at
495-96. Washington's rule is ?the strictest in the nation ? . In most
states an incomplete description or a street address is sufficient, and
parol evidence may be received to locate the land. Not so in Washington.?
18 William B. Stoebuck & John W. Weaver, Washington Practice: Real Estate:
Transactions ? 16.3, at 225 (2d ed. 2004).

Maier v. Giske, 154 Wn. App. 6, 15, 223 P.3d 1265 (2010) (Emphasis added.)

In Home Realty Lynnwood, Inc. v. Walsh, 146 Wn. App. 231, 233, 189 P.3d 253
(2008), Division One reversed a trial court?s grant of summary judgment
which relied on the oral testimony of the parties to a purchase and sale
agreement.  It stated:

Because we adhere to Washington's strict rule against recourse to oral
testimony in determining whether a legal description satisfies the statute
of frauds, we reverse the trial court's order granting the Walshes' summary
judgment motion.

Id. at 233.

Catherine ?Cat? Clark
Law Office of Catherine C. Clark PLLC

110 Prefontaine Place South, Ste. 304

Seattle, WA 98104

Phone: (206) 838-2528
Cell: (206) 409-8938
Email: cat at loccc.com<mailto:cat at loccc.com>

NOTICE: The information contained in this electronic information
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you are hereby notified that any use, dissemination, distribution or
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at (206) 838-2528. Thank you.
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