Legislature(2003 - 2004)
04/30/2003 01:48 PM Senate JUD
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
SB 93 ADVERSE POSSESSION
CHAIR SEEKINS announced SB 93 [work draft CSSB 93 ( ) \V
version] to be up for consideration.
MS. AMY SEITZ, Staff to Senator Wagoner, sponsor of SB 93, said
there was previous committee discussion on public utilities and
boundaries and there were two amendments that addressed the
issue.
SENATOR ELLIS moved amendment 1 for purposes of discussion.
There was no objection and it was so ordered.
SENATOR THERRIAULT asked where the new section went.
MS. SEITZ replied it goes in under AS 09.45.05 section 2(a) and
it clarifies boundary issues.
MR. JON TILLINGHAST, Sealaska Corporation, said he thought he
misadvised Senator Therriault in the last meeting. He used the
example of, if he had a fence that was one foot on his
neighbor's property, would he be able to quiet title after the
fence had been there for 11 years. He said yes, he would,
because the claim would be brought under color of title, but
this bill doesn't touch the color of title portion of adverse
possession.
The courts have said no that the simple boundary
disputes are not color of title type adverse
possession claims; they are the other type of adverse
possession claims, which we are affecting in this
bill. Therefore, this amendment makes it clear that
the Legislature is retaining, not only color of title
adverse possession claims, but also the good faith,
the simple boundary dispute, adverse possession claims
that Senator Therriault asked about.
SENATOR FRENCH asked if they were just adding the good faith
claims exemption to the adverse possession statute.
MR. TILLINGHAST added that it's exempting them from the effects
of the bill and, therefore, retaining them in their present
form.
SENATOR FRENCH asked if this was new language that didn't appear
anywhere else in Alaska statute today.
MR. TILLINGHAST replied that was correct.
SENATOR FRENCH asked how these claims were litigated in the
past.
MR. TILLINGHAST replied that they would have been litigated
under the other adverse possession statute, AS 09.10.030, which
this bill, in essence, abrogates.
SENATOR THERRIAULT asked for a definition of color of title.
MR. TILLINGHAST explained it is any written instrument. The
reason he thought that color of title would cover boundary
claims is that if his boundary fence was a foot too far over on
to his property, he would be claiming that extra foot under his
deed to his house. However, the courts don't look at it that
way. They say no, under color of title, you only receive
whatever land is actually described in whatever written
instrument you're relying upon. "It covers good faith claims
generally that are based on some writing, ... but it doesn't
cover the misplaced fence type of claim."
If he intentionally trespassed on someone else's property with a
fence, he would not be protected, but if it was unintentional,
he would.
CHAIR SEEKINS asked if he bought a piece of property and a porch
was already there and everybody had always assumed that it had
been there in the past, then he's not inheriting some kind of
liability.
MR. TILLINGHAST replied that was correct.
SENATOR THERRIAULT asked Ms. Seitz if she ran this language by
the legal department.
MS. SEITZ replied her office just received the working document
this morning so they didn't have a chance to do that.
SENATOR ELLIS withdrew his motion to adopt amendment 1. There
was no objection and it was so ordered.
SENATOR ELLIS made a motion to adopt conceptual amendment 1 to
be worked on by legislative legal with the correct locator
information, etc.
SENATOR THERRIAULT noted that in Fairbanks, at least, one
subdivision was surveyed and everyone's lot was off by one foot.
Also, earthquakes stretch and compress properties and there has
to be a way to take care of those things. There was no objection
to conceptual amendment 1 and it was adopted.
SENATOR ELLIS made a motion to adopt conceptual amendment 2 as a
conceptual amendment.
MS. SEITZ explained that amendment 2 leaves public utilities the
way the law is now. After ten years, power lines and such can go
through adverse possession to claim the easements. Homer
Electric, Chugach Electric and ARECA are satisfied with the
amendment.
SENATOR FRENCH said he thought the wording needed to be
tightened up on page 2, line 2.
SENATOR THERRIAULT motioned to have legislative legal work with
the sentence. With that, there was no objection and it was so
ordered.
CHAIR SEEKINS announced that they would wait for the new
language before passing the bill [CSSB 93(JUD)] out of
committee. There being no further business to come before the
committee, he adjourned the meeting at 3:22 p.m.
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