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

Fri Oct 27 16:29:57 PDT 2023

Brent,

Thank you for that clarification.

I urge the WSBA to ACTIVELY LOBBY AGAINST THE BILL, as the effect of
the bill is to invite dispute and uncertainty in the realm of long
term leasing, where the harms will not be recognized until decades in
the future when  long term leases with un-notarized signatures are
challenged and the signatories and all witnesses are deceased.

Sincerely,
Erik

On Fri, Oct 27, 2023 at 4:20 PM Brent Williams-Ruth
<brent at williams-ruthlaw.com> wrote:
>
> Mr. Marks and Members of the Section -
>
> I write today not as a new member of the RPPT EC but as one of the At-Large Governors that serve on the WSBA Board of Governors who will be taking this topic up at our meeting next week. I believe the agenda calls for this item on Friday morning, first thing but please don't rely on my memory, you can see our agenda on the WSBA website.
>
> Please know that at this level, we are not going to be amending the proposal. It is up for a vote that we either support this as a WSBA "Bar Bill" or we do not take a position on it. I appreciate the substantive email, but I wanted to be clear that the BOG is not going to get into the substance of the proposed legislation.
>
> For that reason, I would simply request that if you want to write (and please do, we like hearing from people) that you include a line that says - if you cannot amend the legislation either a) do not support or or b) actively lobby against the bill.  That would be extremely helpful feedback from you as a member.
>
> Thank you! Sorry to send this at the end of the day on Friday. Been a heck of a week!
>
> Brent
>
> PS - if you would like to write to me directly about WSBA business, please write to the email I cc'd - brentwr.bog at gmail.com. I try to keep official bar business away from this email.
>
> Brent Williams-Ruth (pronouns: he/him)
> Attorney-At-Law
>
> Law Offices of Brent Williams-Ruth, a division of BWR Consulting, PLLC
>
> Physical Address: 500 S 336th Street, Suite 214; Federal Way, WA 98003
>
> **EFFECTIVE IMMEDIATELY** All mail sent through the USPS should be sent to the following address: PO BOX 3319; Federal Way, WA 98063
>
> Office/Scheduling Phone: (253) 285-7751
>
> Direct: (253) 285-7453
>
> e-mail / website / facebook /
>
>
>
> On Fri, Oct 27, 2023 at 12:27 PM Erik Marks <erik at egmrealestate.com> wrote:
>>
>> 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
>>
>>
>>
>>
>>
>>
>>
>>
>> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
>>
>> _______________________________________________
>> WSBARP mailing list
>> WSBARP at lists.wsbarppt.com
>> http://mailman.fsr.com/mailman/listinfo/wsbarp

-- 
Erik Marks
Cell: 206-612-8653