[WSBARP] RPPT Executive Committee Legislative Update

[Chris B]

Real good comments – I agree.


Chris Benis
First Avenue Law Group, PLLC
321 First Avenue West, Seattle, WA  98119
206.447-1900 office – 206.447.9075 fax – www. firstavenuelaw.com

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of erik at egmrealestate.com
Sent: Thursday, September 28, 2023 12:32 PM
To: wsbarp at lists.wsbarppt.com
Subject: Re: [WSBARP] RPPT Executive Committee Legislative Update

Nathan,

In regard to notarizing leases longer than one year, I would like to offer some thoughts.  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 10 years.  Here is my reasoning:


  1.  Consistency in Approach.  A lease of 99 years is not that different than a conveyance.  If we are going to require notarization in deeds, I think the same reasoning would result in the requirement for notarization of long-term leases.


  1.  Opportunity for Abuse.  I believe 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, in that it is inherently likely in regard to both types of documents that the authenticity of the document may be called into question at a time that 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.)

  1.  Recording Laws.  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.
  2.  Minimal Unintended Effect.  If we require notarization of leases with a term longer than 10 years (and I would encourage an express statement that renewal or extension terms are to be disregarded 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 lease 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 hope this input is helpful.

Erik


--
Erik G Marks
Attorney at Law
PO Box 16247
Seattle, WA 98116

(206) 612-8653
erik at egmrealestate.com<mailto:erik at egmrealestate.com>
Physical Office:
4220 SW Spokane St
Seattle, WA 98116



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