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A Property Lawyer’s Story

Posted Thursday, March 29, 2018 by Kim Sandher

Kim Sandher (ksandher@pivotallawgroup.com) is an attorney with Pivotal Law Group, PLLC, in Seattle, Washington. She has a Bachelor’s degree in Political Science and Economics from the University of British Columbia in Vancouver, Canada, and a Juris Doctor from Seattle University, with a business focus. She is a current young scholar with the American College of Real Estate Lawyers. With a background in litigation, her primary practice is transactional commercial real estate and business law. Kim’s work includes acquisition, purchase, sale, leasing, and financing of businesses and commercial real estate. Outside of work, Kim enjoys volunteering, traveling, sunshine, and Orangetheory Fitness classes.

For as long as I can remember, I wanted to become a commercial real estate attorney. If you asked me what a real estate attorney did, I probably couldn’t tell you beyond “write contracts and stuff.” It was “and stuff” because I myself didn’t really know what the “stuff” was. Despite this, I knew, with bright eyes, this was what I wanted to do with my life.

Even before law school, I was fascinated by big buildings, cranes, and anything and everything relating to construction. A lot of this likely had to do with my dad working in construction when I was a child. I remember excitedly riding to pick him up after work, when he worked on the tear-down of the local Woolco. For anyone that doesn’t remember, Woolco was an American retail store that shut down in the early 1980s. In Canada, it lasted into the mid-1990s. Seeing the building being torn down bit by bit was incredibly exciting to me – and it was equally as exciting to think about what was going to spring up on that lot.

The other part of my fascination with commercial real estate probably has to do with being raised on a mushroom farm in a small, rural farming community that has now become the second-largest city in British Columbia, Canada. Watching Surrey’s transformation from what was then a small, rural town, into a large suburban city amazed me because it seemed so different. I loved watching buildings and infrastructure go up and down, and I wanted to be a part of it. I wanted to be high in the sky, without ever touching anything dirty to get there.

Now that I finally am a real estate attorney, I feel I should be able to define what “and stuff” is. I’ve met with countless attorneys to try to figure it out, brilliant folks who have become my mentors along the way. Even though I’ve been practicing for several years now, it’s when non-lawyers ask me what I do that I realize clearly that even with all my daily experience and all the people I speak to or work with, I haven’t come up with a succinct answer for what I do. What I do know is that I love it.

These are my takeaways for what I do and my best explanation for what it’s like:

REAL ESTATE IS MALE DOMINATED

I attended my very first real property conference in Stevenson, Washington, through the Washington State Bar Association. Like many firsts, it was a memorable experience. My sister joined me for the four-hour road trip from Seattle to what I thought were the boonies of Washington, near the Oregon border. We were both excited about being out in the wilderness for three days and living in the mountains Skamania Lodge was actually a pretty gorgeous, fancy resort that just happened to be in the mountains, but most of all, I was going to learn all about what it’s like to be a real estate attorney—with my non-lawyer sister by my side.That weekend when I walked into the massive conference room full of roughly three hundred people, my first though was, “Wow, there are a lot of men here. They’re all white. They’re also all older than me.” Of course, not every single person in there was male and white; there were several women and maybe a handful of minorities. Everyone there was definitely older than me. At the end of the day, I saw that most of them fit neatly into a certain type of demographic profile that I did not. I also learned quickly that most people had brought their spouse or significant other, not their sister.

I AM DIFFERENT

Something I realize every day is that I am different. I am different from many of my peers, and I am different from many of my clients. I am born and raised in Vancouver. I moved to the United States a little over 11 years ago. My parents are immigrants from Northern India. As a result, my skin is slightly tanned, I have long, dark hair, and I pronounce pasta as pass-ta instead of pah-sta because we say things a little different up in Canada. I get called out on it often enough that I consciously try not to “talk Canadian.” My experience in Seattle is that few people know to classify me as “Indian.”Over the years, I’ve found I get a lot of the “so what are you?” question because people can’t place me neatly into a box. I look a little different, but I don’t have an exotic accent, and my name is “Kim.” They’re not being rude. They know that I am human. They’re often just curious and maybe perplexed, because there are not a lot of real property attorneys who look like me.The other thing I hear often is “you’re so young!” or “are you an attorney?” I personally don’t think this has anything to do with how confident I am or how capable I am. I do look young, and I take it as a compliment and will enjoy it for as long as it lasts. I choose to see it as a strength rather than a detriment. With the world having changed so much in the past decade or so, I have had the opportunity to live through the days of dial-up Internet where we would get disconnected when someone picked up the landline, to now having a smartphone attached to us every waking hour (and sometimes even sleeping hours).Lastly, no one wants to outright say that I am a woman or a “little girl,” but a lot of times I know they are thinking it because so few women work in commercial real estate. This makes me even more passionate about my involvement with organizations such as the American Bar Association and the RPTE Section, to be visible and to help other women and young attorneys excel in the profession. I want to give them a voice and encourage them to get involved in the section, and to pursue leadership roles. I want to be an example of a diverse woman lawyer passionate about commercial real estate, and I want to make it known that women belong in this field and can also achieve success.

BEING DIFFERENT WORKS

Being different works because I stand out. I’ve learned that using unique traits about yourself helps empower others—whether that’s growing up on a farm, being from a small town, looking different, or maybe even having a quirky laugh that makes you stand out. Using these unique characteristics is all advantageous because this is how people remember you and connect with you. This is what makes you real and what makes you human.

HOW I GOT INVOLVED WITH THE AMERICAN BAR ASSOCIATION

One day, fresh out of law school, while I was doing everything I could to land my dream job, I came across an e-mail blast for an ABA Young Lawyer Division scholarship. I had been meeting people for coffee and lunch and volunteering for anything and everything I could to get the experience I wanted and needed. I had a vague idea of what the ABA did, but I was not too familiar with it, other than that it was an organization for lawyers—on a national level. Based on what I read, I loved the idea that I would get to travel to different cities throughout the United States a few times a year and meet motivated young lawyer leaders who were also going to help me be better at what I do.

I discussed the opportunity with two of my mentors, who both encouraged me to apply and spoke fondly of their experiences with the ABA. I applied, not sure if I would be accepted, since my research showed the amazing things past scholars had done with their local bar associations and other organizations. I didn’t think of myself as a leader at that point. Shy and reserved, I thought I was still figuring out what it really meant to be a lawyer. I didn’t think I was in any position to be a leader for other young lawyers. Thus, I was beyond thrilled to learn I was selected as a YLD scholar.

WHAT MADE ME STAY

More than seven years later, I have made so many meaningful connections and great friends through the ABA. Every single one of them has been extremely motivated and passionate about helping people, helping the profession, and bettering him– or herself along the way. I have had the opportunity to do things I never would have thought to do on my own, such as present in front of a group of over 300 people. The first time I did this, I was nervous to the point where I couldn’t even hear myself think, but in retrospect, the experience was thrilling. Perhaps that’s why I’ve volunteered to speak and present many times again after that. My ABA experience has even made me more confident in court for trials and hearings, even though I am now mostly a transactional lawyer. I’ve made friends all over the country who are not only colleagues I can bounce ideas off or see a new perspective from, but people who are like family now. They often refer clients to me when they have someone needing help in the Seattle area.

WHAT MADE ME JOIN THE ABA SECTION OF REAL PROPERTY TRUST AND ESTATE LAW

In 2014, when the managing partner at my firm encouraged me to attend the Spring Symposia for the Real Property Trust and Estate Law Section (RPTE) of the ABA, I knew I couldn’t pass up the opportunity. I was excited for the several days of learning all about current topics in real property. I was serving as chair of the Real Property Trust and Estate Law Committee of the ABA YLD, and I was very involved with my local bar association’s real property section. This conference meant I could experience all this at a national level with the “big bar” and not just young lawyers.

That May I went to Chicago. I met with an attorney friend, and we went to the conference together. I learned a lot about real property law. Seeing as it was my first RPTE conference, and I had only been practicing for four years, some of it went over my head, but I knew that I would pick it up one day. I wanted to become as knowledgeable as the people giving the talks at the seminars.

RPTE has a two-year fellowship program for young lawyers. It provides fellows with funding and a mentor , and puts them directly into the leadership pipeline of the section. I was encouraged to apply for the RPTE fellowship at that first conference. Since I’ve always known that real property is the area of law that I want to focus on, it was a natural fit for me. I applied without hesitation and was excited when I learned I was chosen as a 2014-2016 RPTE Fellow.

I got paired with an amazing mentor who lived all the way on the other side of the country in Florida, but she met up with me in Seattle to introduce herself. She was so friendly, helpful, and well connected; she set up meetings for me with people she knew locally in the Seattle area. Today I work regularly with those same people. I am also now a scholar with the American College of Real Estate Lawyers (ACREL) and have made several local connections in Seattle through ACREL.

THERE’S A LOT OF “STUFF”Through my journey, I have learned a lot of real property “stuff” through the courses I’ve attended at the ABA conferences, the local conferences I’ve attended, the leadership positions I’ve held, the people I’ve met, and the clients I’ve met as a result. I’ve learned that the field of real property law is diverse and can’t be put into a neat little box. It actually is like me. There are many things I get to touch and learn on a day-to-day basis, and every transaction is a little different than the last.

I’VE STILL GOT A LOT TO LEARN

I have been practicing as an attorney for almost eight years now. There’s still a lot of “stuff” I am learning every single day. This is why I never get bored of my job. I am constantly learning new things, and I hope to continue to learn and expand my knowledge every single day. Each morning I wake up excited to see what new challenge will present itself. I wouldn’t change this for the world.

©2018. Published in GPSOLO, Vol. 35, No. 2, March/April 2018, by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association or the copyright holder.

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Washington and Seattle Legislative Roundup – Police, Discrimination, Litigation and Housing

Posted Wednesday, March 21, 2018 by McKean J. Evans

Washington’s 2018 legislative session recently closed. The legislative session resulted in a number of important changes to Washington law.

The Washington legislature enacted significant police reforms. Initiative 940 requires law enforcement officers undergo de-escalation training to help defuse situations before they become violent, and removes the requirement that officers be found to have acted with “malice” to be prosecuted for shootings. Because the legislature voted to enact Initiative 940, the measure becomes law without going to the ballot.

The legislature enacted several measures aimed at protecting women in the workforce from illegal discrimination. The legislature significantly curtailed the use of non-disclosure agreements that would otherwise require complainants in sexual harassment or assault cases to agree not to disclose the unfair treatment they experienced. Finally, the legislature enacted rules promoting gender pay equity by requiring compensation be based on bona fide job criteria and giving workers the right to openly discuss compensation.

In regards to civil litigation, the legislature updated the procedures for mandatory arbitration proceedings. Mandatory arbitration awards may now rise as high as $100,000; parties (as opposed to merely their lawyers) are required to sign off on appeals from mandatory arbitration awards; and arbitrators’ minimum qualifications were enhanced.

In Seattle, the City Council recently voted 8-0 to impose a one-year moratorium on so-called “rent bidding” websites. These websites are used by residential landlords to drive up rents by requiring prospective tenants to bid against each other to pay higher rent in order to rent apartments. The city council called out these practices as driving up the cost of housing in a city where housing costs already contribute to an existing homelessness crisis. The operator of one such rent-bidding platform claims the practice could benefit tenants, but also touts his platform to landlords as increasing rental profits up to five percent. The ban expires in one year, but may be renewed.

McKean Evans is an attorney at Pivotal Law Group representing insurance policyholders and ERISA plan participants and beneficiaries. McKean blogs regarding insurance and ERISA issues at https://seattleinsuranceanderisablog.com/.

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Can Towns Ban Retail Marijuana Sales? Court of Appeals Says Yes

Posted Wednesday, March 14, 2018 by McKean J. Evans

With states increasingly legalizing recreational marijuana retail sales, one question is whether specific towns that prefer not to have marijuana sold at retail can prohibit marijuana stores from opening within their borders. The Court of Appeals’ March 13, 2018 decision in Emerald Enterprises, LLC v. Clark County answers “yes.”

Retail sales of recreational marijuana became legal in Washington after the voters approved Initiative 502 on November 6, 2012 (subsequently codified by the legislature as Washington’s Uniform Controlled Substances Act (“USCA”). The USCA legalized the limited production and sale of recreational marijuana under a licensing and regulatory system operated by the Washington State Liquor and Cannabis Board (the “Board”). The Board has final authority to issue retail licenses to persons desiring to sell marijuana at retail.

On May 27, 2014, Clark County passed an Ordinance banning the retail sale of recreational marijuana in unincorporated Clark County. Emerald Enterprises obtained a retail marijuana license from the Board, over Clark County’s objection. Emerald Enterprises then challenged the Clark County retail marijuana ban in court. While the dispute made its way through the lower courts, Emerald Enterprises began selling marijuana in Clark County despite the ban. Clark County ordered Emerald Enterprises to cease and desist, and revoked Emerald Enterprises’ building permit.

The Court of Appeals upheld Clark County’s marijuana retail ban. The court determined the USCA did not prohibit Clark County from banning retail marijuana. Emerald Enterprises claimed the Washington Constitution prohibited the Ordinance because it irreconcilably conflicts with the USCA, and because the USCA impliedly preempts local regulation of marijuana retail sales. Disagreeing, the court noted local governments in Washington historically “wield significant regulatory powers,” that local governments are presumed autonomous, and that Emerald Enterprises failed to overcome that presumption as applied to retail marijuana sales. The Court reasoned the USCA permits the sale of retail marijuana but grants no affirmative right to sell marijuana. Because the Ordinance did not prohibit the exercise of a right affirmatively granted by Washington law, no irreconcilable conflict existed.

The Court of Appeals also determined the Ordinance did not “thwart[] the will of voters and the legislative purpose” of the USCA. The Court held the USCA’s purpose was not to encourage the retail sale of marijuana but only to regulate and tax marijuana sales without any mandate to maximize or encourage sales. The Court also inferred the Washington legislature intended to permit local governments to ban marijuana sales from the legislature’s provision that local governments may derive certain financial benefits under the USCA only if they do not prohibit marijuana operations.

Finally, for many of the same reasons, the Court of Appeals also held the USCA did not preempt local regulation of marijuana sales. Since the USCA did not grant the affirmative right to sell marijuana and the Ordinance did not conflict with the USCA’s purpose, the USCA did not preempt local marijuana regulation.

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Does My Insurer Need to Tell Me When They Change My Policy?

Posted Wednesday, March 7, 2018 by McKean J. Evans

Court of Appeals decision emphasizes minimal notice requirement for renewal insurance policy changes.

A common pitfall for insurance policyholders lies in the insurer’s renewal notice. Policyholders often set their policy premiums to pay and set the policy to renew automatically. Having set the policy on “autopilot,” the policyholder receives the automatic renewal notice and thinks they do not need to closely read it, on the assumption that renewing the old policy means they are getting the same coverage. But insurers often add material changes to their policies in renewal notices, which policyholders may not realize until years later when a loss they thought was covered turns out to be excluded under the modified policy.

This was the issue in the Washington Court of Appeals’ recently-published decision in Jackson v. Esurance Insurance Company, Case No. 75506-4-L. The court’s decision parses coverage under Mr. Jackson’s Esurance auto insurance policy and the policy’s exclusion for racing. Whether a car was involved in racing at the time of an accident would seem straightforward, but that was not the case for Mr. Jackson, whose policy included an expanded racing exclusion Esurance added in the fine print of his renewal policy. This decision reminds policyholders to always check the fine print of the insurance policy renewal notice because it may not be consistent with their expectations.

In February 2006, Mr. Jackson purchased a personal auto insurance policy from Esurance. Esurance delivered the policy to Mr. Jackson electronically pursuant to Esurance’s business model as an internet-based insurance company. Mr. Jackson’s original policy excluded: “Loss to ‘your covered auto’ or any ‘non-owned auto’, located inside a facility designed for racing, for the purpose of: a. Competing in; or b. Practicing or preparing for any prearranged or organized racing or speed contest.” In January 2010, Mr. Jackson renewed his Esurance policy. The renewal policy contained a broader racing exclusion, also excluding: “Participating in any racing school, driving school, driver training, skills training, race driving experience, or race adventure program.”

In June 2014, Mr. Jackson attended an Audi driving-skills training program at the Pacific Raceways racecourse. Mr. Jackson wanted to make sure his insurance covered him for any damages that might occur during the event, so he checked the copy of his policy available on Esurance’s website. Esurance’s website only contained the original policy with the narrow racing exclusion that did not exclude “driving school” participation.

Mr. Jackson crashed his vehicle during the driving skills program. He made a claim with Esurance. Esurance denied his claim under the expanded racing exclusion’s exclusion for racing school participation, quoting the current policy language.

Mr. Jackson sued Esurance under Washington’s Insurance Fair Conduct Act and Consumer Protection Act, as well as bringing claims for breach of the policy contract and common law bad faith. He claimed that Esurance failed to properly notify him of the 2010 policy amendment expanding the racing exclusion, and that Esurance’s conduct was deceptive and unlawful in violation of the Consumer Protection Act. The trial court dismissed Mr. Jackson’s lawsuit. Mr. Jackson appealed to the Court of Appeals, who affirmed the dismissal.

First, the Court of Appeals held Esurance’s 2010 broadening of the racing exclusion was enforceable. The Court of Appeals agreed with Mr. Jackson that Washington law required Esurance to notify him before amending or modifying the policy. But the court noted Washington law does not require notice be given in a specific manner, and permitted Esurance to deliver notices of policy changes electronically. Mr. Jackson consented to receive policy notices electronically when purchasing his original policy from Esurance. Even though Esurance’s renewal consisted of a terse email with a hyperlink to renewal “terms and conditions” not contained in the email itself, the court ruled this was sufficient to give Mr. Jackson notice of the expanded racing exclusion.

Second, the Court of Appeals determined Esurance’s electronic notice of the expanded racing exclusion was not deceptive or unlawful under the Consumer Protection Act. Mr. Jackson argued his difficulty in locating the actual policy on Esurance’s website rendered Esurance’s notice procedures deceptive. The court rejected that argument because Esurance provided Mr. Jackson instructions to access his policy when he first purchased it in February 2006. The court attributed Mr. Jackson’s difficulty solely to his decision not to carefully read the renewal notices Esurance sent him.

This decision emphasizes the need for policyholders to carefully read notices and renewal policy documents their insurers send them. If you have questions regarding insurance issues, contact Pivotal Law Group attorney McKean J. Evans today for a free consultation. McKean blogs regarding insurance and ERISA issues at https://seattleinsuranceanderisablog.com/.

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Washington Court of Appeals Rules on Insurance Coverage and Arson Case

Posted Wednesday, February 28, 2018 by McKean J. Evans

The Washington Court of Appeals, in an unpublished decision in Schmidt v. American Commerce Insurance Company, recently decided claims against an insurance company where the jury concluded the insured burned his own house down. Schmidt rebuilt his home following landslides, but found that the home violated King County code and could not lawfully be torn down or rebuilt. Thereafter, a fire burned down the home while Mr. Schmidt was home alone. Mr. Schmidt, a firefighter, testified he was unable to put out the fire because he had previously shut off power to the home, and could not call the fire department because his phone was dead.

Mr. Schmidt made a claim for the fire to his insurance company American Commerce Insurance Company (“ACIC”). ACIC denied the claim, asserting arson. A jury concluded Mr. Schmidt set fire to his own home, and found for ACIC. After the verdict, ACIC asked the court to award ACIC its costs of defending the suit, but the court awarded ACIC only $200.00 out of its requested $30,009.67 in fees.

Mr. Schmidt asked for a new trial. He claimed ACIC’s counsel made prejudicial statements in ACIC’s closing argument to the jury by telling the jury to infer Mr. Schmidt’s guilt from the lack of his fellow firefighters supporting him at trial. Even though his lawyer failed to object to this statement, Mr. Schmidt claimed the statement was so prejudicial that he was entitled to a new trial even absent an objection. Mr. Schmidt also sought a new trial on the basis that ACIC’s lawyers prejudiced Mr. Schmidt by repeatedly pointing out Mr. Schmidt’s claims handling experts were from outside Washington. Finally, Mr. Schmidt claimed he was entitled to a new trial because ACIC disclosed new expert witness opinions in the middle of trial.

The Court of Appeals denied Mr. Schmidt’s request for a new trial. It found ACIC’s improper statements could have been cured by an instruction from the trial judge, but Mr. Schmidt’s lawyer’s failure to ask for such an instruction at the time precluded Mr. Schmidt from seeking a new trial on appeal. The Court of Appeals determined ACIC’s references to Mr. Schmidt’s expert being from outside Washington was part of an appropriate effort to show that the expert was not qualified to opine on insurer practices in Washington. Lastly, the court determined Mr. Schmidt was not prejudiced by ACIC’s late expert opinions because those opinions responded to statements by Mr. Schmidt’s experts. Mr. Schmidt’s other objections were dismissed because he failed to adequately assert them at trial.

ACIC asked the Court of Appeals to award ACIC all its attorney’s fees and costs based on the jury’s finding that Mr. Schmidt committed arson. ACIC relied on Washington statutory provisions requiring insurance policyholders to act in good faith and imposing criminal penalties for false or fraudulent insurance claims. The Court of Appeals concluded neither statute authorized attorney’s fees.

ACIC also asked the Court of Appeals to reverse the trial court’s decision that ACIC improperly failed to identify policy coverage for the interest of Mr. Schmidt’s mortgage lienholder. ACIC claimed Mr. Schmidt lacked standing to invoke policy provisions benefitting his lienholder and that Mr. Schmidt’s arson precluded his claim against ACIC. Even though the jury ultimately concluded Mr. Schmidt intentionally set fire to the house, the Court of Appeals found ACIC could be liable for failing to disclose and pay the leinholder’s coverage.

Because the Court of Appeals’ decision is unpublished, it lacks precedential value, but it is nevertheless an interesting example of the issues that can play out where both an insurer and policyholder engage in misconduct.

McKean Evans is an attorney at Pivotal Law Group representing insurance policyholders and ERISA plan participants and beneficiaries. McKean blogs regarding insurance and ERISA issues at https://seattleinsuranceanderisablog.com/.

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