[WSBARP] RPPT Executive Committee Legislative Update

[K. Garl Long]

I endorse Erik's comments and perspective.

K. Garl Long

On 9/28/23 12:31, erik at egmrealestate.com wrote:
>
> 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.
>
>  2. 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.)
>
>  3. 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.
>
>  4. 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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