[WSBARP] RPPT Executive Committee Legislative Update
K. Garl Long
Garl at longlaw.biz
Thu Sep 28 12:41:56 PDT 2023
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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>
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