Vermont Legislature SmartTranscripts:

[Rep. Ian Goodnow (Member)]: We are live.

[Rep. Martin LaLonde (Chair)]: Alright. Welcome back to the House Judiciary Committee this Tuesday afternoon, March tenth, and we're going to turn our attention to h three eighty five, coercive debt, and over to is Michelle kicking us off? Or Ian, did you wanna mention anything as far as all the fine work that you've done? We're all there. Alright. Michelle, over to Thank you. Good afternoon. Welcome back.

[Michelle Childs (Legislative Counsel)]: Hope I everybody's feeling refreshed, although I heard that Kenny was not.

[James (Jim) Knapp (Co-Chair, Real Estate Section, Vermont Bar Association)]: But we'll see what we can do. We we'll see if

[Michelle Childs (Legislative Counsel)]: we can toss him a bone this week.

[Rep. Martin LaLonde (Chair)]: It's all plus. So

[Michelle Childs (Legislative Counsel)]: I'm ready to be in another committee, so I'm going to walk you through. This should all seem hopefully familiar, although I know, really, we've been gone for a week. You should have a copy of draft 1.15.

[Rep. Martin LaLonde (Chair)]: Oh, that's a good thing. Yeah. That's a different way of doing that, isn't it?

[Michelle Childs (Legislative Counsel)]: Yes. Send me back.

[Rep. Martin LaLonde (Chair)]: Generally,

[Michelle Childs (Legislative Counsel)]: and I don't know because Maria's been here almost as long as I have. But generally, the number the first number is when we've gotten direction from clients or the committee to make a new draft change. Usually behind the decimal point are kind of internal versions. Like, so if I send it to Charlie and Chris, and then and then they are like, oh, can you tweak this to me? And then I do a new draft, but it hasn't gone to you guys, then we change the number behind. But Maria has a different system. So but regardless, apparently, this is at least the fifteenth version of this draft. Oh, so maybe it's fifteenth. Well, that's what that yeah, that's what they want to say after the decimals becomes. Yep. Okay. It's crept up since you guys have been working

[Rep. Martin LaLonde (Chair)]: on it.

[Michelle Childs (Legislative Counsel)]: The judiciary, she did a great job in highlighting for you. So judiciary revisions are in yellow, commerce revisions in gray. I'm just going to review with you the changes in yellow. So first change is on page two. So this is where we're working in the definition section. And so you'll see the definition at the top of page two for coerced debt, and it's striking subdivision to be there on lines nine and ten around had the language around was not subject to a final judgment action in which the court adjudicated the issue of coerced debt on the merits. And they should have asked I'm trying to remember, actually. I don't remember the whole discussions around that. I think you guys had decided before after hearing from the bankers on that. So maybe I think you guys are gonna hear from Chris after I'm done. So that's removed. Page three, subdivision six on the definition of future abuse or number.

[Rep. Martin LaLonde (Chair)]: Thought I wasn't gonna do this, but so the Vermont Bank, if usually, we don't see that there, is that just highlighted? Is that just put in there so we know we're gonna hear from them? Because that's not how we usually do it.

[Michelle Childs (Legislative Counsel)]: I think, again, I think all the attorneys on staff might do little things that are different and kind of unique to their committees that they work to help guide them. So that's something so just like if once this bill is voted out of commerce, the yellow highlighting won't be there. And any reader assists like Vermont bankers

[Rep. Martin LaLonde (Chair)]: won't

[Michelle Childs (Legislative Counsel)]: be in there. I I think kind

[Rep. Martin LaLonde (Chair)]: of looking at somebody else in the room there to go see if I was gonna get any guidance on that.

[Michelle Childs (Legislative Counsel)]: I think, I think, yeah, Chris is going to testify, and I think they can talk to you about why they had suggested that that come out.

[Rep. Martin LaLonde (Chair)]: Thank you. Uh-huh.

[Michelle Childs (Legislative Counsel)]: So page three, top of the page, subdivision six on future abuse. Remember, this discussion around the debtor being able to show that if they don't want to disclose the name or the contact information for the perpetrator, that they have to be able to show that doing so may subject them to future abuse. And so we incorporated, kind of by reference, we refer to the definition that's in Title 15 in your domestic relations title and the definition of abuse that is in the provision for obtaining an RFA. However, you recall that when you're working in that particular chapter, that those protection orders only apply to family and household members. Household members can be just like it sounds, somebody who is living with you, but it could also be someone who you've had a dating or sexual relationship with as well. But using that definition would exclude being able to show if you were a victim of human trafficking, there may not be that family relation or household member relation. So we just said future abuse means abuse as provided in title 15, except that the abuse may not occur between family or household members. But still everything else applies the same. Then we're jumping all the way to page 15. Well, I will note on page 14, there's just a little technical amendment under b one. You'll see just on line 13. So looking at page 15, subsection d, And so this is the one with respect to the future abuse. What was in there previously is so if a debtor signs a sworn statement that disclosing the identity and contact information for the perpetrator is likely to result in future abuse to the debtor or a member of the debtor's immediate family. The creditor can file a motion requesting a hearing to determine the danger of future abuse to the debtor or to a member of the debtor's immediate family. And you'll see the new language starts on line nine. So what she did there is she crossed out what was previously there. So that will disappear that struck and underlined. And a new language starts on line nine. And the debtor has the burden of proving by preponderance of the evidence that if the debtor discloses the identity and contact information for the perpetrator, the perpetrator poses a danger of future abuse to the debtor or to a member of the debtor's immediate family. And so then we're going back to that definition we just talked about. Okay. So the debtor has the burden approved. And I think those are the only remaining changes.

[Rep. Martin LaLonde (Chair)]: The very end piece. Except

[Michelle Childs (Legislative Counsel)]: for at the very end on effective date section is section six, a report on forced debt, takes effect on 07/01/2028. But I think that that's the same. I think that that she's

[Rep. Martin LaLonde (Chair)]: I don't think that's

[Michelle Childs (Legislative Counsel)]: I don't think that's new. I think maybe she just put a reference to it.

[Rep. Martin LaLonde (Chair)]: Yeah. Yeah. And that's not our change. Right. Okay. Any questions? Let's have Chris here in the join us. Thank you for being here, Chris. Thank you. Good afternoon.

[Chris D'Elia (President, Vermont Bankers Association)]: Chris Deilia, president for Mount Bankers Association, to answer the question of the language that struck on page two. I can't remember whether it was draft point one three or one four that was in green, which was the language from this committee. You had added on page 14 lines twelve and thirteen, the court shall vacate any previous default judgment. So the language on page two wasn't necessary. So that's why we've asked to have it taken out because it's dealt you folks dealt with it on page 14. K. Other than that, we are fine with the language that's been developed by Legis Council in this committee. Any questions for Chris? Barely no question. Was waiting for Kenneth. Thought you had a question. Oh, yeah, sure does. Okay. All right. Good. All right. Right. We'll go to Charlie then. Thank you very much, Chris.

[Rep. Ian Goodnow (Member)]: Thank you,

[Rep. Martin LaLonde (Chair)]: Chris. For all your work on cooperation and help this work. That might change in a minute, though. Yeah, we'll have you back to talk about some other things as I think so. Thank you.

[Charlie Gossettman (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: I'm Charlie Gossettman, Policy Director at the Vermont Network Against Domestic and Sexual Violence. I similarly don't have many additional comments to add to the appreciation for the work of this committee and the pledged counsel, but I would be happy to answer any questions.

[Rep. Martin LaLonde (Chair)]: Any questions? I did give you a whole hour to talk about this. That's fine. I don't see any questions. So do folks need more time to think about this before having a straw poll on this, or are we good? Because it sounds like the folks have all come together on the language. Are we good with the straw poll now, or do people need more time? Goodnow. Don't I'm gonna drugs now.

[Rep. Angela Arsenault (Member)]: Well, that's great. Distraple is just on the power section anyway. Yeah.

[Michelle Childs (Legislative Counsel)]: It's just

[Rep. Martin LaLonde (Chair)]: for our section. It's just for the work that we did on the civil rights, which seem to be and we've heard from drugs so many people from the network. Think we've heard from anything you can hear from. Okay. Well, I guess I take a a motion to be signed our input, our amendments, suggested amendments, which Ian will be presenting to them tomorrow afternoon, that we find them favorable? Absolutely. Second. Second. Any discussion? Again, thank you. Everybody seemed to come together really well. Again, thank you very much, Chris and Charlie. So all those in favor of finding the amendments favorable, raise your hand. And everybody's unanimous. So there you have that for us. We're missing two. So nine zero two and Struple. Thank you. So what we're gonna do since we have Charlie here and we're gonna turn to the miscellaneous bill. And I don't know, Chris, before you run out, you want to, since you're here, do you want to testify after Charlie on your part of the miscellaneous bill? Or do you want to hear from the other Jim Mayf can set the context for you. Okay, fine. And then he'll follow-up. Okay, that sounds fine, man. Thank you. Great. So, Charlie, if you could transition to the we'll give you a moment to it's to find. Thank you for being here again.

[Charlie Gossettman (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: Charlie Lusserman, policy director from Hot Network Against Domestic and Sexual Violence. Thank you for having me in to speak on the Miscellaneous Judiciary Bill. I am going to keep my comments to sections eight and eleven, which are the ones that are most relevant to victim services and the work that we do at the network. But I would be happy to speak to any other sections or answer other questions that the committee has.

[Rep. Martin LaLonde (Chair)]: All right. I think it's both eight, probably eight and nine are both related to the

[Charlie Gossettman (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: That's same change, absolutely right. So for Sections eight and nine, we greatly appreciate Representative Harvey introducing this language, and we support it. This language really clarifies the civil definition of stalking course of conduct. And in that clarification, says that two or more acts over a period of time, however short, do not need to be on separate calendar days. We feel that this is the intention of the existing language, but it is very helpful to provide clear directions to the courts and victims of stalking around what this force of conduct really means. And we feel this language does that. Section 11, we also support this language. I think you'll be able to hear more from Jennifer Pullman at the Center for Crime Victim Services about this language. But this is a piece that we have looked at in the context of the Vine Task Force to improve victim notification practices, particularly in post conviction. As part of that work, the Center for Crime Victim Services updated the sheet that law enforcement provides to victims that outlines their rights as victims of crime. That new sheet includes information about vying and victim notification. So we feel that the language included in the miscellaneous bill in Section 11 reflects the work of the Vine Task Force and that we are supporting law enforcement in meeting this obligation with the new form that was provided to them, and I think it would be helpful to codify that in legislation. The last piece that I wanted to note on the miscellaneous bill is that we would also request the committee consider adding language from eight six to eight into the miscellaneous judiciary bill. Similar to Section eight, these were changes to an RFA statute in a separate bill that are really aligned with the intention of the existing statute, but are updated to account for how practices are playing out for victims in court. I testified on this bill in early February, and I sent my testimony to me so that that is fresh and available to you all. This language would ensure RFA access when defendants are under DOC supervision rather than when they are just incarcerated.

[James (Jim) Knapp (Co-Chair, Real Estate Section, Vermont Bar Association)]: The bill number again that that was? 628.

[Rep. Martin LaLonde (Chair)]: 628, thank you.

[Charlie Gossettman (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: This bill would also allow courts to order continued payment of existing household expenses. I testified to these changes in early February. You have my testimony in writing, but if it would be helpful, I'm happy to give a brief refresher now.

[Rep. Martin LaLonde (Chair)]: So I wouldn't do that right yet. I understand that Representative Burditt had some questions and issues. Okay. He wasn't fully on board. I think he was fine with the first part of what you said. But there he still had questions and I think concerns about the second component. So I would want him to be here and I want him to kind of weigh in on this part. I mean, presumably as a minimum, could put in the under the supervision with them. Mean, that's a technical question. I think unless there has an issue with that as well. So let's hold off on that. Okay. And actually we will try to circle around. If you could actually even circle around to Tom in case he has particular questions that you can answer. Then we're gonna be taking up any kind of additions on Thursday afternoon, like final addition. So I would suggest that. Yeah, Angela.

[Rep. Angela Arsenault (Member)]: That sounds great. Can I ask a question about the first part that under the supervision of the Department of Corrections, I have in my notes from your testimony in February, Charlie, that we might wanna clarify because it says Anne has been convicted of

[Michelle Childs (Legislative Counsel)]: one of the following, and

[Rep. Angela Arsenault (Member)]: we just wanna clarify that that conviction is tied to the current or pending matter? Would that still Was that okay with you? Yes, that

[Charlie Gossettman (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: was totally fine with me, and it's my understanding that Michelle worked on language that addressed that question. Great.

[Rep. Martin LaLonde (Chair)]: Okay. So we will flag this one for possible inclusion. And then I

[Rep. Angela Arsenault (Member)]: have one other question about something from section eight and nine from the Michigan. I was just curious for our information, if the network is aware of cases in which the statute was interpreted to mean that personal conduct required that the incidents be on separate I

[Charlie Gossettman (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: am not aware of a specific case, but it is something that I can certainly reach out to our membership about and see if it has come across their desk. I know we do hear pretty consistently just confusion about course of conduct generally. I would not be surprised if that had come up. And I think that it is helpful to clarify here.

[Rep. Angela Arsenault (Member)]: Yeah, and I ask not to challenge the clarification. I think clarification is great. I'm asking more out of interest in understanding how the words we come up with here end up being interpreted. It's hard for me to imagine a judge thinking, well, this doesn't count because it happens on the same day. And so I would be interested from that perspective, just trying to get into the minds of judges as much as possible. Yes, I think it's a great question. And I can either follow-up offline, or

[Charlie Gossettman (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: if I come back and speak to this on Thursday, can

[Rep. Angela Arsenault (Member)]: have some more information then. Thank you. Excellent. Other questions?

[Rep. Martin LaLonde (Chair)]: No, that looks good. Thank you very much.

[Michelle Childs (Legislative Counsel)]: And

[Rep. Martin LaLonde (Chair)]: there may actually, there may be one other amendment that we'll be asking you about, just to flag it for you. Let me just find this, since I have you there, and I'm trying to buy some time because Deb Zoning is about to jump on Zooey. So it's a change, and actually, Ian, if you can explain, isn't this something that the minor amendment of conditions of probation midpoint review 28 BSA section two fifty two(one)? Oh,

[Rep. Ian Goodnow (Member)]: do you want to talk about that now?

[Rep. Martin LaLonde (Chair)]: Well, just to flag it for Charlie so that she can prepare to weigh in on it I on

[Rep. Ian Goodnow (Member)]: was hoping to incorporate into the miscellaneous bill a very small change to the midpoint review statute, which I can Whatever it is. PSA, section two fifty two. Basically, now, all of the sex assault crimes are not are not allowed to be midpoint reviewed, violations of protective orders are. And so this would change it so that vappos are not a midpoint reviewable case conviction.

[Rep. Martin LaLonde (Chair)]: Yeah, so if you can just be prepared to weigh in on that, Doug.

[Rep. Ian Goodnow (Member)]: Does that make sense?

[Charlie Gossettman (Policy Director, Vermont Network Against Domestic and Sexual Violence)]: Yes, totally understood. I'm happy to speak to that on Thursday.

[Rep. Martin LaLonde (Chair)]: All right, I think that is it for now. Like I say, Judge Zonay says he will fighting momentarily. Still will schedule a little bit of Maybe we can actually get through all this stuff much more quickly than I anticipated.

[Rep. Ian Goodnow (Member)]: You be wanna chasing me off the wall?

[Rep. Martin LaLonde (Chair)]: No. Thanks for the idea. So so just for folks, you may have noticed on the agenda, just looking forward to the agenda just to run through real quick. Tomorrow, we'll be doing h six zero six. That's that

[James (Jim) Knapp (Co-Chair, Real Estate Section, Vermont Bar Association)]: one again.

[Rep. Martin LaLonde (Chair)]: That that is gonna be there. Okay. You get the emails, James? I've got a few. I think it's maybe there's others on the committee, but I've got a few. So there's that one in the morning, and then it's it's been significantly reduced. So it only has really three main components at this point. I'll get it up so folks can see it. Or I'll just I'll send it around so because we did send it to the witnesses. I'll send it around to everybody so you can see it in advance. H seven seven two is in the afternoon. That's the eviction procedures. It's the rental. The landlord tenant. And I've been working over the so called break with legislative council and Greg Zone, and they have an amendment which I will also get out to folks to take a look at today in advance of that tomorrow afternoon. And we'll hopefully have an amendment that Michelle is working on an h one seventy one. That's the investigations into law enforcement officers. I've been talking with Representative Burditt with Tom about this. And it's going to create a working group, task force, whatever you want to call it, of the folks that are involved in these investigations to come up with a structure, a legislative structure for how it should be done. And I think that's a good next step for for that. And I think I think Tom agrees. He pushed through more about it. And then on Thursday is youthful offender proceedings. Once again, I will have an amendment to folks that Eric is currently working on that Kim McMahon has provided some input on. And we'll get that folks by the end of tomorrow so they can look at that. And I'd left open Thursday afternoon because some of the stuff is inevitably gonna bleed over into into Thursday afternoon. What we can't get done as far as those other bills I just mentioned, we have a little bit of leeway to schedule more witnesses if necessary on Thursday afternoon. And then hopefully, we'll have time on the after the floor before lunch to vote all these things out. And hopefully, you won't have to be here Friday afternoon. But just in case, please don't plan anything because we'll wanna try to get the five bills out that I have listed. H six zero six, H six four two, the miscellaneous judiciary bill, h five two nine, and actually, I need to add h one seven one, sorry, and H410. We'll see what we get there. H71219. Yes. Yeah. Oh, so yeah. Oh, yeah. It's here, but I just didn't have it down from the boat. So Kochelle's working on playing with Yeah. All right, so Judge Zone, thank you for being flexible and being able to jump on a little early to weigh in on the parts of the Missile Union's Fiduciary Bill, draft 1.1 dated 03/2026. And over to you and we do miss the beard.

[Hon. Thomas Zonay (Chief Superior Judge)]: Well, my grandsons were very excited that it came off and my three and a half year old one looked at me and go, Good job, Bubba. Happy.

[Rep. Martin LaLonde (Chair)]: What would ever make somebody shave like that? Tom

[Hon. Thomas Zonay (Chief Superior Judge)]: Zone, Chief Superior Judge. So on page eight is the first section. Section five, this is on dissemination of electronic case records. The only request we have with respect to this, because what what this section does is it allows the, judiciary and the court to actually come up with rules, and that's consistent with how other jurisdictions have hand many other jurisdictions, especially in New England, handled this. But we would need time to do that, and so the effective date on passage would not be workable. The request would be 07/01/2027 to give us time to get where we need to be.

[Rep. Martin LaLonde (Chair)]: All right. That's section five. And okay. All right. And that will change section 30 is what will happen is that we'll have section five. Can you say again what the date is that?

[Hon. Thomas Zonay (Chief Superior Judge)]: I believe 07/01/2027 should work.

[Rep. Martin LaLonde (Chair)]: Okay, all right.

[Hon. Thomas Zonay (Chief Superior Judge)]: The next section, section six is simply changing district to superior. Section seven is a section that there's actually two sections in title 12 that say the same thing, so we're deleting one of those to be clear. Sections eight and nine, were ones that the judiciary did not put in, and I don't know where they came from, but they talk about in the stalking definitions, it says course of conduct shall not be construed to require that the two or more acts occur on separate calendar days. That's already the law essentially by the supreme court when they've talked about, that there's some separation between the acts, but it doesn't require any specific amount of time. That's fine, I guess, is the best way of saying it because that's basically where we are anyway under case law. Okay. Page 21 had section 20, which was to repeal the spendship guardianship statutes, and that was requested by the Probate Procedure Advisory Committee, because those statutes are outdated. They're no longer used as a basis for guardianship positions, petitions, I'm sorry. On page 22 was section 21, and what that does is simply align the times, to make it, have the review hearing every fourteen days rather than fifteen to bring it into alignment with custody review hearings. On page 23 with section 22 was simply to remove a requirement for a certified copy. It's just no longer necessary with our electronic case management system. Pages twenty three and twenty four had sections twenty three and twenty four, which were simply to update statutory references that needed to be updated. Pay section 25 was one that I don't that was not something the judiciary requested, but I understand it. And it appears to be a response to a supreme court decision that was issued in early twenty twenty six. So, certainly, that's a policy decision for the legislature. And section 29 amends the timelines for hearings to align with the final hearing times for vulnerable adult protection orders, the same as relief from abuse orders. And that's where we are. We have no issues with the other matters. We're not things we requested nor weighing in on it unless there's questions.

[Rep. Martin LaLonde (Chair)]: Well, I actually would like you to go back to section three, cause I think this, you flagged that issue earlier this year. If there's anything that you can say or weigh in on that particular section.

[Hon. Thomas Zonay (Chief Superior Judge)]: Give me one second.

[Rep. Martin LaLonde (Chair)]: I think it was a discrepancy that you had pointed out.

[Hon. Thomas Zonay (Chief Superior Judge)]: And I'm trying to and I apologize, I do remember now that we talked about it, but I don't it had to do with the language of the 12 years of age or older, and this clarified it.

[Rep. Martin LaLonde (Chair)]: Right, I think it's to if I'm calling right, to be consistent with the underage alcohol possession?

[Hon. Thomas Zonay (Chief Superior Judge)]: I believe that's correct. And to make that, to align them when a bunch of the changes were made.

[Rep. Martin LaLonde (Chair)]: Right, okay. Any questions for Doctor. Sobe? I'm not seeing any. So thank you very much, judge. Appreciate your time and flexibility. And I see that we do have Jim Knapp here and we can jump right into that. You're ready and willing and available. A little short

[James (Jim) Knapp (Co-Chair, Real Estate Section, Vermont Bar Association)]: of breath, that hill's a lot steeper than it used to be, and there are more stairs than you can soon be to get here. Understood, understood. Maybe I'm just older, I can't remember which way it works. Good to see you, Jim. Thank you. Well, thank you for inviting me to come and discuss this statutory change. I have a visual aid to get to my explanation. So for the record, my name is James Knapp, I go by Chim. I am the co chair of the real estate section of the Renault Bar Association. For those of you who don't know me, my background is a licensed attorney. I've been in practice for forty five years. I retired a couple of years ago. But before that, I had twenty five years in private practice law where I concentrated specifically on only real estate transactions. I had ten years as state counsel for three different title insurance companies. I worked for the Bar Association for a couple of years. I was the interim director at property valuation and review for a couple of years. So I like to say I've had a great opportunity to experience a lot of different things and do a lot of interesting things. My best friend said, you just can't hold the job, can you? All right, so we're here to talk about some amendments to Title 27, Section two. This is a very old statutory section. It's been around for a very long time. I went to see if I could find, years ago I had a compilation of the statutes that existed in 1847, which I couldn't find, but I'm assuming that something like Title 27, Section two existed at that point. And the reason that we're discussing this, even though that statute's been around for probably well over one hundred years.

[Rep. Martin LaLonde (Chair)]: And before you go on, just so for the committee, it's

[James (Jim) Knapp (Co-Chair, Real Estate Section, Vermont Bar Association)]: actually Section 25 in the bill at page 25. Yes, sorry. I think I'm just title 27, section two. That's my thought. Go ahead. So in January, the Vermont Supreme Court handed down a decision in the case of Kershon versus Abidele Mills, a rather run of the mill case. It involved a transaction between a mother and her three sons. They set up in 1958. So bear in mind that the genesis of this problem was 1958. They set up a transaction where mom transferred a piece of property to herself and to her three sons. And the deed was structured in the way that everyone thought was okay. And we have to take a little side trip here, because for those of you who are not familiar with the structure of a deed, there are multiple clauses, but one of them we refer to as the grant. That's the text, if you go back and look at your property you own, it says, I, someone, give grant, sell, convey and confirm unto, and then it names somebody. That's what we're going to refer to as the grant clause. Read down the deed a little ways, we go past the property description, and we get to a clause that has existed since the 1700s. And it starts with the famous words to have and to hold. And so it is called by its Latin name, the habendum clause, and that's where that text comes in. And typically that repeats or has similar language to what appears in the grand clause. Well, the 1958 deed, I heard part of Eric's presentation this morning, he mentioned to you that there are three ways to hold title here in Vermont. You can have a tenancy in common, a tenancy in common. The classic example here would be three strangers or three partners or three of you on a piece of property together. And if one of you should be so unfortunate as pass while you're the title holder, you want the property to pass to your heirs. The second alternative is what we refer to as joint tenants or joint tenants with rights of survivorship. And in that case, and this is often used in family transactions, particularly where the family wants the property to remain in the close family, you set it up as joint tenants of survivorship. And that way, when a grantee passes, their interest goes to the surviving grantees. When two of the grantees are gone, the longest lived survivor takes the entire time. Okay, so we presume that in 1958, when Hazel Rathbun decided she was going to convey the property to her three sons and herself, that she meant to do it as joint tenants with right of survivorship so that the property would stay in the family group and it would just shrink as people passed. Now, in 1977, Hazel decided she didn't want to own the property anymore, so she ended up giving it to her three children. However, that is irrelevant to what we're talking about today because the Supreme Court never reached that case. So the challenge is that in the grand clause, Hazel didn't specify if she wanted the property held as tenants in common or as joint tenants. However, she did in the habendum clause say joint tenants rights of survivorship. For better or for worse, the form of the deed that we have used since the 1760s, 50s, the earliest land records that existed in the state of Vermont, we have been using the exact same form of deeds since they began recording deeds in Vermont. Also includes the phrase, their heirs and assigns. So if you have two or more grantees, the grant would go to Jim Knapp, Bob Paolini, has tenants in common or is joint tenants since he thinks he's gonna outlive me. And their heirs and designs. Now, sorry to sound like a property professor. It is my role in life to sound like a property professor. For two fifty years and probably longer since our property law constructions came from the English common law, the words there, heirs and the signs has always denoted a very specific thing, full ownership of the property. Those of you who are history folks, you'll remember long, long ago under English common law, you didn't really own your property. King owned the property and the king would give it to you for as long as the king decided you should have it. And when the king decided you shouldn't have it any longer, the king would take it back and give it to someone else. Well, as the feudal system disappeared and property passed into the hands of people, they created all these wonderful concepts about how you might hold property. So there's something called a fecal. And in that case, the property passed to you and to your oldest male surviving child. And that was the way property was held for a very long time until your predecessors did away with B tail. They've been revoked in Vermont. They no longer have any effect. You can hold a piece of property for a number of years. You can hold a property for as long as you live, all kinds of issues. But those words, their heirs in the signs created what we call the fee simple title, the whole bundle of rights, everything, you owned it all. All right, so let's look at the Kirtan decision. The heirs of the original brothers got into a dispute over who owned this piece of property. The Kershon said, hey, it's a joint tenancy, last living of the brothers owns the whole thing. Okay. The Abeleli said, no, that deed created a tenancy in common. And so each of the three brothers heirs took their interest, right? So brother one, his heirs, brother two, his heirs, brother three, his heirs took each of their third interest in the proxy. The decision at the trial court level was joint tenancy with right of survivorship. The Abideleys appealed to the Supreme Court and the Supreme Court says, no, that was wrong. And what they focused on was two things. The Grand Plaza and the Hupendum Plaza appeared to create different rights because your predecessors adopted the original version of 27 BSA two, and the key part of that first sentence is we presume that a grant to two people is a tenancy in common unless The Supreme Court said, look, we start off with the presumption they tried a tenancy in common because they didn't fit the unless. They only put joint tenants with right of survivorship in the Habenden plots. And here's the key part. And they said their plural pronoun heirs and assigns. So what the Supreme Court said was, well, if they meant to create a joint tenancy, they wouldn't have used the pronoun their because their heirs couldn't take the property. Only the surviving brother could take the property and it would pass to his heirs. That's not the way most lawyers in Vermont understand the way this works. So that means that we show up here and ask you to not change the law, but clarify the law, because we have always assumed we being the three eighty nine lawyers in the real estate section of the Vermont Bar Association's Connect program and the three twenty nine lawyers in the probate and trust section have all believed that their heirs and assigns means fee title. And if you put joint tenants anywhere in the deed, you have met that unless in the original 27 BSA two. So we have asked you to adopt the language that was suggested as a means of clarifying that the understanding that we have all had for two hundred plus years is correct. I mean, we all like to be right, but we firmly believe this was the case. And basically what I have to say is, I've been doing title searches since I was about 14. Yeah, my dad, I had one really important skill set. I went to Catholic school, so I had really good handwriting. In the age before photocopiers, how did you do a title search? You hand wrote out all of the documents. So for 50¢ an hour, which I think should have been renegotiated, I followed him around all summer and my job was to copy what he put in front of me. For all that time, the deeds have always read two names, their heirs and assigns, and no one ever believed that that subtracted from, changed or took away from the joint tenants. So we're just asking for two fifty years of common law to get expressly written in the statute. And my notes, which you have on your site, mentioned that there are thousands, there are probably tens of thousands, there could even be hundreds of thousands of deeds that in theory go all the way back to the 1750s, the founding of the first towns, because as soon as those towns were set up and the proprietors took their property, the first thing every one of them did was start trading the land using DEET. So these issues could run all the way back. That's why the section twenty six? Twenty five. 25 is the change and 26 is the retroactivity. We're asking that it be clear that this has always been the law in Vermont so that it is not a circumstance where it starts July 1 or whatever day you choose to make the statute effective if you adopted, but that this has always been our understanding all along. So there are other folks here who are going to talk about more of the history and more of the technical aspects of this. So I'm going to stop there so you don't hear the same thing over and over again. If you have any questions, I would be more than happy to answer them or try to answer them.

[Rep. Martin LaLonde (Chair)]: So I guess just a basic question is who opposes this change, if anybody? Does the plaintiff who prevailed or the party who prevailed in the Supreme Court oppose change necessary is for that decision?

[James (Jim) Knapp (Co-Chair, Real Estate Section, Vermont Bar Association)]: That's too difficult. Compound questions. Yes, that's okay. If this law had been in effect as we have proposed to make it, the Kirtans would have won because their deed clearly used the words joint tenants with right of survivorship in a portion of the D.

[Rep. Martin LaLonde (Chair)]: And they've lost. They lost. Okay, right.

[James (Jim) Knapp (Co-Chair, Real Estate Section, Vermont Bar Association)]: At least the property interests were decided not in their favor. I believe this case may still be ongoing on some different issues, but this aspect of it is settled, it's res judicata. The change is not going to affect that particular outcome. And you'll notice that the section 26 says that this change in the law is not going to affect any case that has already commenced. So anyone who's already in court is going to operate under the original Title 20 if you adopt changes. I am not aware. I will tell you that in response to the question that you asked the first time about this back when we initially proposed it, I pitched the question to the real estate connect. That's a bar association sponsors, what some of us would have called a listserv and now we call it a connect. And it is a community. I think the last number I saw was three eighty nine lawyers who profess to practice in the real estate area. And we're all online and you post a question. And I like to tell people it's a great resource because within twenty four hours, you'll have an answer within seventy two hours, you'll have three answers. Unfortunately, two of them will conflict with one of them, but that's okay. That's the way lawyers work. But it's great because it's a very active list. There have been thousands of conversations on this list. I pitched your question, I got 69 responses. Now I've been doing this. I've been the chair of this section for fifteen years, something like that. And the most responses I ever got to a similar question was three. So I went from three, a couple of years ago, we had another change that we requested and you acted on it. And I said, does anybody think this is a bad idea? Did we do an okay job? I got three answers. I put this out, I had, I believe, 69 responses within seventy two hours. No one opposes it. Everyone said we have to do this. This is critical. I have hundreds of deeds that I've drafted relying on what we think the law said, but not what the Supreme Court said. I did not have a good chance, although I should have now that I think about it, it's sort of been a really good thing to do, run a search on Vermont Supreme Court cases to see what other times this question had come up. I know of one prior case that was decided in 1999 or 2000. That is the case of Chip versus Chip's estate. And that had a similar but not the same fact pattern because the deed in Kipp versus Chip's estate was very poorly done. It actually said tenants in common in the grant clause and joint tenants with right of survivorship and habendum clause. So it was internally inconsistent. I generally tell people that was malpractice by cut and paste. And that's the only case that I know of since I've been practicing, which would be November 1980, where this issue has come up, was decided the way Kershun was decided. So it's a rare case, but very important to all those people who drafted their deeds and who have deeds? An interesting question. I assume all of you own property. Well, look up your deed and see what it says. But I think that Elizabeth Smith, who's here from Caddock will have a really good historical perspective on you. And I know she reached out to her attorneys and she has count of the number who thought this was a good change. I can tell you that nobody has communicated with me that they oppose this change.

[Rep. Martin LaLonde (Chair)]: We have the questions for the

[Rep. Ian Goodnow (Member)]: Just what was the date of the Kirtan decision?

[James (Jim) Knapp (Co-Chair, Real Estate Section, Vermont Bar Association)]: January is what? January 18. I can give you all my notes that would leave me without the ability to comment on. I don't think I wrote anything on that. That's not a good thing to receive. That's got to be the decision.

[Rep. Ian Goodnow (Member)]: So I guess my only question is it's such a quick turnaround for us to be amending current law based on a Supreme Court decision that's just so new. It's actually the second time. Okay.

[James (Jim) Knapp (Co-Chair, Real Estate Section, Vermont Bar Association)]: There was a complete disaster of a case in 9798. That was the Bianchi versus Laurent's decision, a fascinating case in which the Supreme Court for the first time ever told the entire practicing real estate bar that land use permits were a title matter and not a regulatory matter. A pitch was made to the legislature to adopt the correction, the so called Bianchi correction, and it passed in the same session that the Bianchi case was decided. So this is not, this not unusual in the context of where a significant decision that potentially affects the rights of thousands of Vermonters whose deeds read like Kirschen did. So we think it's really important to get it done really quickly so that nobody else's property rights are altered. Just because somebody didn't understand how the Supreme Court might do something in the future.

[Rep. Martin LaLonde (Chair)]: All right, thank you very much, Jim. So committee, we're gonna take two shorter breaks this afternoon because of how hot it is. We'll take a ten minute break now and then probably at three or a little after three, we'll take another ten minute break. So I think that just probably works out a little bit better for

[Rep. Ian Goodnow (Member)]: So