[WSBARP] [resending as legible] Legislation to Eliminate Notary Requirement for Leases over 1 Year

[Erik Marks]

Apologies for my post on this same subject yesterday, and a heads-up for all
- apparently emails sent in HTML do not show up on this listserve - must
use plain text.  Here is what I wrote yesterday :


All,

A couple months back this ListServe had a discussion on it about a
legislative proposal to eliminate the requirement that leases with a term
over 1 year be notarized.  At the time I posted an argument in opposition
to the proposed legislation, and several others chimed in to support my
position, and offer constructive input.

It has now been brought to my attention that the WSBA Board of Governors,
at its November 2-3 Meeting, is going to consider whether the WSBA will
support the proposed legislation.  (I am told that RPPT Executive indicated
its support for the proposed legislation, but did not create any record of
the reasoning behind such election to support.) I sent in my comments to
barleaders at wsba.org as reproduced below, and I encourage you to do the same
if this is of interest to you

Best wishes,
Erik


[MY EMAIL TO BOARD OF GOVERNORS – barleaders at wsba.org  ]

 Dear Bar Leaders,
Thank you for your service to our profession.

 I am writing in regard to proposed legislation that would remove the
requirement that leases in excess of 1 year be notarized.  I believe the
proposed legislation is well intended, but that it goes too far and would
be harmful to the public interest for the reasons explained below.  As a
matter of background, in my career I have been a commercial real estate
attorney, commercial real estate broker, and an owner and operator of
commercial real estate.  So I have seen this stuff from several relevant
angles.

 I support the proposed legislation, HOWEVER, I encourage a modification.
I would encourage a continuing requirement for notarization of leases that
are longer than 11 years.  Here is my thinking:

* Consistency in Reasoning – Deeds and Long Term Leases*.  A lease of 99
years materially very close to a conveyance.  If we are going to require
notarization in deeds, then the same reasoning would result in the
requirement for notarization of long-term leases.  Since no one thinks that
removing the requirement for notarizing deeds is a good idea, similarly no
one should think that it is a good idea to remove the requirement for
notarizing long term leases.

* Notarization Mutes the Opportunity for Abuse*.  The common characteristic
to both long term leases and deeds, which is somewhat unique in the legal
landscape,  is that both documents have a term of relevance that nearly
always extends beyond the lifetime of the party who signed the document.
That makes it likely that the signing party (and witnesses) would be
unavailable to testify as to the authenticity of the signature.  The notary
process helps address this issue.

The reasoning behind our requirement for notarization of deeds is to (a)
prevent fraud and (b) allow for more efficient resolution of disputes in
the instance of alleged fraud.  If someone produces a copy of a 99 year
lease 30 years after it was allegedly signed, and the purported lessor is
deceased, it will be difficult for the parties to resolve whether or not
the lease is in fact authentic.  This difficulty is compounded by the fact
that leases are not customarily recorded. The opportunity for abuse is that
an unscrupulous party can produce a 99 year lease with a signature of a
deceased person, and cause all sorts of difficulty for the owners of the
land affected by the lease.

Although I am not very familiar with the law around testamentary wills, I
believe there is a similarity to long term leases and deeds, in that it is
inherently likely in regard to these 3 types of documents that the
authenticity of the document will be called into question at a time when
the signatory to the document is deceased.  In testamentary wills,
witnesses are required.  For long term leases, a requirement for
notarization would serve that role.  (I believe some states require
witnesses for long term leases; but for consistency with the remainder of
Washington’s real estate conveyance law and custom, using notaries for long
term leases, rather than witnesses, is likely the right answer.)

*Requiring Notarization Pushes Long Term Leases into Recordable Format*.
Generally documents that are to be recorded must be notarized.  While a
person could still get a lease notarized, it will cease to be custom to do
so.  In my opinion it would be good if long-term leases remained in a form
that could be recorded.

*11 Year Rule Is Narrowly Tailored*   If we require notarization of leases
with a term longer than 11 years (renewal or extension terms should be
included in the calculation of the term for the purposes of the
notarization requirement), it will affect only a very very small percentage
of leases; and those leases that it does effect are serious ones with
significant terms, where the minimal hurdle of notarization is probably a
good thing in that it prevents the parties from rushing to signature.  I am
recommending 11 years as a cutoff because it will avoid a notary
requirement for customary “5+5 year term” leases (approximate 5 year
initial term, with one 5-year renewal term) which are very common in the
office and retail context.  In my broad ranging professional experience,
only a very small percentage of commercial leases, and effectively no
residential leases, have a term in excess of 11 years.



I hope this input is helpful.





-- 

Erik G Marks

Attorney at Law
PO Box 16247

Seattle, WA 98116


(206) 612-8653
erik at egmrealestate.com

Physical Office:
4220 SW Spokane St
Seattle, WA 98116
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