Legislature(2003 - 2004)

04/30/2003 01:48 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ 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                                                               
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                                                               
     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                                                               
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                                                               
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                                                               
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                                                               
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                                                               
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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