Seattle’s Indemnity Agreement.

Many people who are interested in buying real property take solace from the fact that a building meets city code, that the city has inspected the structure and finally approved it. This is particularly true with buildings that might be affected by a landslide. Usually city approval of the project in a landslide-prone area is a part of the sales pitch. People in Seattle who are comforted by this are being badly deceived. Permitting by the City of Seattle areas with a risk of landslide exposes people to greater risk of liability, not less.

Before Seattle will issue a building permit for a project in a “sensitive area” it requires that an indemnity agreement be signed. It requires such an agreement even for a permit to conduct repairs. The agreement is recorded and purports to bind everyone who late comes into ownership. These agreements are harshly anti-consumer and shift risk from the city to homeowners and other property owners.

An example of this occurred in a case called 1515Lakeview Boulevard Association, where the developer built a condominium on a hillside consisting of landfill. He recorded the indemnity agreement but did not mention this to the unit buyers. When the condominium was destroyed in a landslide the city pulled out the agreement and figuratively waived it in the buyers’ faces. The developer had sold the units and for practical purposes was gone from the scene.

The terms of the indemnity agreement are in my mind unconscionable. For a developer who is going to sell the project to consumers the agreement is not a big problem because the burden will fall on the buyers. Residential condominia that are damaged by a landslide cannot be repaired without the owners signing an indemnity agreement. The consumers have the choice of signing the agreement or abandoning their homes, which will subject them to other liability.

If they sign the agreement, they among other things are bound to pay all the City’s expenses if it is sued and not solely responsible. They become liable if they do not keep the City informed of subsequent developments. In this way the economic burden of an avoidable disaster is shifted from the City (and the developer) to the innocent purchaser who has had no involvement or opportunity to protect himself or herself.

Lease/Option: Watch Out

Over the last five years or so there has been a noticeable increase in Washington in the use of residential leases that include an option to purchase.  These are often put together by either the buyer or seller and treated rather informally.  This is a mistake for both parties, as the lease/option is becoming commonplace in the courts and the source of a great deal of anguish.  There are a host of technical reuqirements that the instrument must meet in order to be enforceable.  Typically a home-made lease/option lies in a nether world where it is arguable whether the technical requirements are met.

The recent case Pardee v. Jolly is an example of the legal entanglements and uncertainty in which one finds oneself in entering into a home-made lease/option. Shortly after signing the nefarious thing, the parties found themselves in court.  The judge held that the document had been properly enforced and ordered the landlord/pwner to convey to the tenant.  The landlord/owner appealed and the court of appeals reversed the trial judge.  The tenant then appealed to the Washington State Supreme Court and the Court reversed the court of appeals, sustaining the trial judge in part and remanding for further proceedings.

In drafting an option one must satisfy the statute of frauds among other things.  This requires a full legal description and an adequate writing.  It should have virtually all of the elements of a valid purchase and sale agreement.  If formalities are observed the option must be exercised in conformance with the requirements of the option.

Washington Republicans Seek to Alter 14th Amendment

Last week the Washington Republican Party defined, as a platform item, the elimination of the law that causes people born in the United States to be citizens. This law of course is the <a href=”http://caselaw.lp.findlaw.com/data/constitution/amendment14/”>14th amendment to the Constitution</a>. This amendment, as we know, is a cornerstone of the civil liberties, that we celebrate in our tributes to democracy. This is quite a bold step for defenders of our country’s historical values.

This historic undertaking was not supported by Republican state Attorney General Rob McKenna, who alluded to disregarding 200 years of judicial history. He said, though, that it does not make much difference because people don’t remember what’s on the party platform.

Republican Party Chairman Luke Esser was not daunted by constitutional history, saying that this amounted taking a case to the Supreme Court to ask it to reinterpret the Constitution. He no doubt would argue to the conservative justices that the constitution is a living document and should not be interpreted according to its plain meaning or the intent of the drafters. He would have to argue that it should be interpretted in light to the social menace that he sees.

The constitutional provision that the Washington GOP wants re-interpretted is

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States . . .

On the face of it its hard to say that the Washington GOP has any regard for the constitution.

There is precedent for a narrow reading of the 14th amendment. If our local GOP did research on this topic they no doubt found encouragement in the Dred Scott decision which, as far as I know, was the last time section 1 of the 14th amendment was interpreted in a manner other than its plain meaning.

The Bill for National Service

As we all know the Iraq War was carefully orchestrated.  The McClellan book calls attention to the propaganda campaign that preceded the war and continues throughout the campaign.   The historical precedent that was probably examined for the use of media for manufacturing consent to the war, or the appearance of consent, was the Spanish-American War.

At the same time, great effort was made to create a situation in which Americans would not be affected by the war; it would be nothing more than a television program here, with the media there tightly controlled.  For the first time in history taxes were reduced as a war was launched.  Mercenaries were hired to conduct much of the war.  The economy here  benefited by the extensive us of contractors, formerly called war profiteers.

The military even manufactured stories to create warrior icons, insulting the family of Pat Tillman (which still fighting to get to the truth of the coverup) and embarrassing Jessica Lynch, who gave one of the most moving speeches imaginable to Congress when she disclaimed the lies that had been concocted about her.  This was all part of an effort to re-engineer many of the social influences that contributed to the anti-war movement that brought an end to the Viet Nam War.

Perhaps the most significant factor in boosting the anti-war movement of forty years ago was the draft.  College age men were forced to go to war, excluding people such as those comprising the current administration who exploited privilege or exemptions from service.  Others went to Canada, prison or became conscientious objectors.  The fabric of society was torn by the appropriation of people to fight the war.  When the war affected the lives of most people here, there was a great deal more concern about it and the reasons for it.  The volunteer army circumvents much of this.

Congressman Rangel is concerned that the volunteer army is disproportionately composed of the poor and people of color, people who do not have a strong voice in politics.   Congressman McDermott wants a system where people will care about policies that result in the deaths of huge numbers of innocent people.  Last week two independent surveyors estimated that over 1,200,000 innocent people have been killed in Iraq.  In propaganda jargon this is “collateral damage.”

The founding fathers were quite aware of the damage to the society that could be done by an unpopular war.  So they sought to built into their government’s framework structure that would avoid such a possibility.  One measure was to forbid a standing army.  This has gone into the historical dustbin.  Another was to give Congress the duty of appropriating money for any war.  James Madison in the Federalist Papers thought that this measure assured that there could never be an unpopular war in the United States.  We have seen this aspect of governmental checks and balances fail.

Jim McDermott and Charles Rangel have sponsored a bill that is intended to create a structural impediment to unpopular war.  Like the architects of the Iraq War, they used the Viet Nam War experience as a guide.  Their bill will institute a two year period of national service, military or other service.

The bill would require people between the ages of 18 and 42 to perform national service of some sort for two years.  McDermott at a speech at the University of Washington characterized the bill as an attempt to re-invest democracy in our society (where service is not born disproportionately by lower economic groups) and create a sense of community in the country.