Deeds in Washington

A deed is legal document that conveys in interest in real property from one person to another. Although there are many similarities, each state has different rules and requirements regarding deeds. Don’t rely on the description of possible deeds for another state if you want to convey property in Washington. By the same token, the information below will not be helpful if you’ve got property outside the Evergreen State.

The basic requirements for a deed in Washington are simple: it must be in writing, contain a legal description of the property, be signed by the grantor, and the grantor’s signature must be notarized. RCW 64.04.020. The legal description is a specific way of describing the property and distinguishing it from any other parcel of property. Washington law is very strict about the requirement of a legal description. An address is not sufficient, nor is a tax parcel number. To be enforceable, a deed must contain either a “metes and bounds” description (a description of the property prepared by a surveyor) or a “lot, block, and plat” description (a description of the property referring to a prior plat recorded in the county records). See Martin v. Seigel, 35 Wn.2d 223, 212 P.2d 107 (1950).

Although many types of deeds are possible, most conveyances in Washington are done with one of three deeds specified by statute:

Statutory Warranty Deed (or just Warranty Deed)
Under RCW 64.04.030, a statutory warranty deed conveys the property together with certain specified covenants from the grantor to the recipient. By using a this deed, the grantor promises the transferee (1) that he or she is the owner of the property and has the right to convey it, (2) that no one else is possessing the property, (3) that there are no encumbrances against the property, (4) that no one with a better claim to the property will interfere with the transferee’s rights, and (5) to defend certain claims regarding title to the property. Warranty deeds are commonly used in purchase transactions where the buyer wants assurances as to the title of the property.

Bargain and Sale Deed
A bargain and sale deed in Washington would be called a special warranty deed in many other states. By using a bargain and sale deed under RCW 64.04.040, the grantor makes some promises regarding title, but the covenants only relate to the period that the grantor owned the property. Thus, the grantor promises (1) that he or she is the owner of the property, (2) that there are no encumbrances against the property during the time the grantor owned it, and (3) that the grantor will not interfere with the transferee’s rights to the property. Bargain and sale deeds are commonly used by banks who have acquired property after foreclosure. A bargain and sale deed could also be used in other situations where the grantor is unwilling to make the broad covenants that go along with a warranty deed.

Quitclaim Deed
A quitclaim deed conveys title with no covenants at all. RCW 64.04.050. The grantor of a quitclaim deed does not even promise that he or she owns the property described in the deed or that he or she has the right to convey it. Quitclaim deeds are used for many purposes, including gifts of property, conveyances to correct prior deeds, and conveyances to settle a legal dispute. Quitclaim deeds are also used simply to confirm that the grantor does not claim any interest in the described property.

Once you have prepared the deed, it is always best to have it recorded in the county records. Recording a deed puts the rest of the world on notice that the transaction has occurred. In the event of a dispute between two grantees, Washington’s recording statute gives priority to the party who recorded first. Any conveyances of an interest in real property is potentially taxable in Washington, so in order to record a deed, the parties must also prepare and sign a real estate excise tax affidavit stating the purchase price or the grounds for any claimed exemption.

If you have additional questions about which deed is right for your situation, you should consult with an attorney licensed to practice law in the jurisdiction where the property is located.

Jury demands for civil lawsuits

A question arose from one of my law students regarding jury demands in a civil litigation setting. (In criminal trials, juries must be unanimous in their pronouncements of “guilty.“) In a civil setting, it is different. A jury may consist of six or 12 individuals and does not need to be unanimous in issuing a verdict. Rather, they must have a significant majority in order to issue a verdict: five out of six, or 10 out of 12.  RCW 4.44.380.

Civil Rule 38 provides that if a jury demand does not specify the number of injuries, it will be a six-member jury. Thus, you must specifically state that you would like 12 members of the jury in your jury demand, otherwise the default number is six.  Civil Rule 48 also allows for stipulation regarding a jury, which allows a certain degree of flexibility between the parties in order to arrange their own jury preference:

The parties may stipulate that the jury shall consist of any number less than 12 or that a verdict or a filing of a stated majority of the jurors shall be taken as the verdict or finding of the jury.

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An overview of real property trespass

With a few exceptions, the legal doctrine of trespass is governed by common law precedent. (Common law is developed over time through decisions made by courts. Statutory law, or simply “statutes,” are laws created by and through legislatures.) The tort of trespass states that someone may be liable for damages if he or she interferes with another person’s possession of real property. For property owners, there are two statutes which govern trespass onto property: RCW 4.24.630 and 64.12.030.

20130226-211041.jpgRCW 4.24.630 states that someone who wrongfully goes onto the land of another and removes timber, crops, minerals, or other similar valuable property from the land, or wrongfully causes waste or injury to the land, is liable for treble damages plus attorney’s fees. Wrongfully is defined in the statute when a “person intentionally and unreasonably commits the act or acts while knowing, or having reason to know, that he or she lacks authorization to so act.”

RCW 64.12.030 is more narrow in comparison to 4.24.630. In that provision, a trespasser is liable for treble damages if he or she damages trees or shrubbery of another. There is NO attorney’s fees provision, as is found in 4.24.630, however the same treble damages component is available. (It should be noted that damage caused to property that is purely incidental to the removal of the subject timber/trees does not count as another statutory violation and is instead, subsumed into the treble damages.)

These statutory damages are primarly related to injury to property (or the plants/trees contained thereon). If a statutory remedy is not available, that does not preclude typical tort liability as dictated by case law (i.e. when someone interferes with the possessory right of another). In fact, the tort of intentional inflection of emotional distress is available to Plaintiff and not precluded by virtue of the existence of RCW 4.24.630 or 64.12.030.

A natural question to pose after looking at those trespass rules, is what to do about pollution? A trespass may be an ongoing trespass (such as a water pipe from on property unlawfully directing water onto another person’s property), thus, how does the law handle issues of pollution where vast quantities of particulates are spread over large geographical areas? The court requires a Plaintiff to satisfy the following 4-part test in order to be eligible for damages:

1) The invasion must affect an interest in exclusive possession of property; AND
2) The party must be intentionally doing the act which results in the invasions; AND
3) The polluting party must reasonably foresee that the act done could result in an invasion of plaintiff’s possessory interest; AND
4) Finally, there must be substantial damages to the res.

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How long does a homeowner have to remain in the home after a foreclosure sale takes place?

A common question we get is how long after a foreclosure has taken place can the owner of the property expect to stay in the home? The answer can be found in the RCW:

The purchaser at the trustee’s sale shall be entitled to possession of the property on the twentieth day following the sale, as against the borrower and grantor under the deed of trust and anyone having an interest junior to the deed of trust, including occupants who are not tenants, who were given all of the notices to which they were entitled under this chapter. The purchaser shall also have a right to the summary proceedings to obtain possession of real property provided in chapter 59.12 RCW.

61.24.060. Rights and remedies of trustee’s sale purchaser–Written notice to occupants or tenants, WA ST 61.24.060
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After the 20 days have run, the party attempting to gain possession of the property must then follow the procedures contained in RCW 59.12. This statute covers the rules and procedures to evict someone from a property. If you include the statutory time it takes to execute the actual eviction, a property owner might expect to stay in the property for another several days. A smart strategy would be to negotiate a payment from the new owner of the property. Under the right circumstances, they may be willing to pay a modest relocation payment so as to avoid the hassle of having to try and push through the eviction procedures.

Housing market in recovery? Yes, but signs show there will be a slow down in 2013

Writing for Housing Wire, Megan Hopkins reports that the housing prices are likely to top out at modest increase in value:

Despite beginning the year with market lows, most home prices gained momentum toward the end up 2012, finishing the year at 4.9% year-over-year price gains. Some markets, though they are few, may also suffer a backslide in values.

According to the latest Clear Capital home data report, national home prices are expected to increase by only 2.1% this year. The 2013 yearly gains are expected to be smaller partly because homes are starting on a higher price base, but the entire explanation is more complex than that, Clear Capital notes.

While many western localities are seeing the firming up of housing prices, there are still several areas that could potentially see a shift down in pricing:

Only eight markets are projected to see prices fall in 2013, including Denver; Louisville, Ky.; Charlotte, N.C.; Philadelphia; Atlanta; Baltimore; Chicago and St. Louis. For those eight markets, average declines should come in at just 0.9%.

Thankfully, the Seattle area housing market continues to lead the charge in the beleaguered housing recovery:

Seattle, a market with a strong recovery already in the works, is expected to see the highest gains of the top 50 major metro markets at 13.5%.

A word on the HAMP program

Since the beginning of the recession in 2008, loan modification programs have been available primarily through the Home Affordable Mortgage Program (HAMP). If a homeowner was unable to quality, the individual mortgage company could offer its own programs.

Normally, the goal of a modification is a lower monthly payment through reduced interest rates, elongating the term of the loan, principal balance reduction, or a combination of all. Our firm has helped clients since the downturn’s beginning with modifications. We have seen a tremendous amount succeed through the lowered interest rates and/or lengthening the loan. Seldom, however, did lenders reduce principal balances. But now they are. Over several months, we have seen an uptick in this remedy, sometimes several thousand dollars or even tens of thousands in reduced balance. We have seen eliminations of entire second mortgage balances.

You may have heard of the settlement five banks reached with the federal government, called the New National Mortgage Settlement. In February 2012, the federal government and 49 states (Oklahoma did not participate) entered into a settlement with the country’s five largest loan lenders: Ally, Bank of America, Citi Bank, JPMorgan Chase, and Wells Fargo. In the settlement, $25 billion is set aside for mortgage relief to underwater homeowners, $17 billion of which for loan modifications and principal reductions.

As we watch the effect of this settlement unfold, we can only assume it will further benefit the homeowners who qualify though they must be borrowers of the settling banks or servicers. In a later Blog entry, focus on eligibility will be discussed.

–Contributed by Michael P. Dickson

Foreclosure Fairness Act – Change of Timing for Submission of Mediation Request

In June 7, 2012, the Foreclosure Fairness Act changed regarding when a mediation demand submission may be accepted. It states the following: (SHB 2614, Sec. 5)

A housing counselor or attorney assisting a borrower may refer the borrower tomediation, pursuant to RCW 61.24.163, if the housing counselor or attorney determines that mediation is appropriate based on the individual circumstances and the borrower has received a notice of default. The referral to mediation may be made any time after a notice of default has been issued but no later than twenty days after the date a notice of sale has been recorded.

Podcast: Foreclosure Fairness Act – What is it, and how to take advantage of the mediation option

 In this podcast, Rob Dickson describes how the new Foreclosure Fairness Act has impacted foreclosures in Washington. (Photo Credit: jscreationzs)