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Breaking the Gavel Ceiling One Seat at A Time by Hailee N. Elledge and Cathy R. Silak
by Hailee N. Elledge and Cathy R. Silak
For the first time in Idaho history, the Idaho Supreme Court bench will be comprised of a majority of women. On November 6, 2023, Governor Brad Little appointed Judge Cynthia Meyer, a Kootenai County District Judge to serve on the Idaho Supreme Court, filling the vacancy left behind by Justice John Stegner.[1] This is particularly remarkable given that as of May 2022, men nationwide held 59 percent of all state supreme court seats.[2]
In 2021, only 11 years ago, Idaho had the lowest percentage of women judges at just 12 percent.[3] In 2016, a study by the National Association of Women Judges found that Idaho was ranked one of two states without a female serving on its highest court.[4] Now only seven years later, Idaho will be just one of fourteen states with a majority of women serving on the State’s Supreme Court.[5]
The appointment of most of the female Supreme Court Justices in Idaho reflects a commitment to diversity and excellence in the highest echelons of the judiciary. Arguably, however, this great milestone in history would not have been achieved if it had not been for other female attorneys, breaking down barriers, and paving the way forward. This article explores the history and accomplishments of several remarkable Idaho women who have ascended to the Idaho state benches and federal benches, breaking barriers, and inspiring future generations.
The history of female attorneys reaching the bench is relatively recent when considering the long-standing male-dominated legal landscape. The 1970s marked a pivotal era when women began entering law schools in significant numbers, subsequently paving the way for their presence in courtrooms and, eventually, on the bench. Early female judges, such as Sandra Day O’Connor, who became the first female U.S. Supreme Court Justice in 1981, set the stage for future generations of women in the legal field.
For Idaho, it was no different. In recent years, the legal landscape in Idaho has witnessed a significant and positive transformation with the appointment of accomplished women attorneys to the state bench at all levels. Historically, the judiciary has been predominantly male, but the rise of these talented and dedicated women marks a milestone in the pursuit of gender equality within the legal profession. The inclusion of these women on the bench is not only essential for gender equality but also provides litigants with more diverse perspectives, experiences, and approaches to the interpretation of the law. Female judges contribute to a more well-rounded and comprehensive understanding of legal issues, reflecting the rich tapestry of American society. Their presence ensures that the judiciary remains relevant and responsive to the needs of a diverse citizenry.
It was only 40 short years ago that Idaho’s first female district court judge was appointed. In 1983 Deborah Bail was the first woman appointed as a District Court Judge in the state of Idaho, taking her seat on the bench only eight years after being admitted to the Idaho State Bar.[6] At the time Judge Bail was admitted to the bar she was of the first fifty female attorneys in the state of Idaho.[7] After law school at Northwestern School of Law, Judge Bail was an Assistant U.S. Attorney for the District of Idaho where she handled civil matters and prosecuted federal cases until she was appointed to the bench by Governor John V. Evans.[8] Her appointment marked a significant milestone for women in the legal profession in the state, paving the way for future generations of female judges in Idaho. Today, there are over 30 female magistrate judges and district court judges serving on the bench of Idaho’s seven judicial districts.
1990: Idaho Appoints First Female Court of Appeals Judge
Following Judge Bail, in 1990, Idaho hit another major milestone when Cathy Silak was the first woman appointed to the Idaho Court of Appeals by Governor Cecil D. Andrus.[9] At the time of Justice Silak’s appointment, Governor Andrus emphasized the importance of including women on the bench, stating “we must provide more opportunities for women in the judicial branch of government. The overriding consideration must be, in my opinion, the quality and qualification of the nominees. I have selected on that basis.”[10] As a Judge of the Idaho Court of Appeals, Judge Silak joined Judges Jesse Walters and Roger Swanstrom.[11] Before joining the Idaho Court of Appeals, she served as an Assistant United States Attorney and became a partner at the law firm Hawley Troxell Ennis & Hawley.[12]
1992: Idaho’s First Female Supreme Court Justice
Only two years later, Idaho again created history and took a significant stride towards diversifying the State’s highest bench. In 1992 Governor Cecil D. Andrus appointed Idaho’s District Court Judge Linda Copple Trout to the Idaho Supreme Court as the first female Supreme Court Justice for the state of Idaho and the youngest.[13] Trout was one of 13 applicants, four of whom were selected by the Idaho Judicial Council and submitted to Governor Andrus.[14] Her appointment marked a historic moment in Idaho’s legal history, breaking gender barriers in the judiciary at the highest level. Prior to taking the bench, Idaho native Justice Trout received her Juris Doctor from the University of Idaho College of Law, and practiced in private practice in Lewiston for six years.[15] Thereafter, Justice Trout was appointed as a magistrate judge and was elected a district judge for the Second Judicial District of Idaho eight years later.[16] While serving on the Idaho Supreme Court, Justice Trout was elected by the Idaho Supreme Court to be Chief Justice in 1997 and served as the Chief Justice until 2004.[17]
1993 to 2015
After being appointed to the Idaho Supreme Court, Justice Trout was joined shortly thereafter by Judge Cathy Silak who was appointed as the second female Idaho Supreme Court Justice in 1993, succeeding Justice Robert Bakes.[18] The following year, in 1994, Justice Silak’s seat was up for re-election. Silak retained her seat in a statewide election, defeating Wayne Kidwell.[19] Notably, this election was the first time in over 60 years that an Idaho Supreme Court seat had been challenged.[20] During her term, Silak became the Court’s Vice-Chief Justice in 1997, the first time any female had ever held that position. [21]
While Justice Silak retained her seat in 1994, six years later she was unseated by Dan Eismann, marking the first time in 68 years an incumbent seat was defeated.[22] From 2000 through 2007, Justice Trout served as the only female Idaho Supreme Court Justice.[23] In 2007, Justice Trout announced her retirement from the Idaho Supreme Court.[24] While Idaho had made significant strides forward in creating diversity on the Idaho Supreme Court, the Idaho Supreme Court did not have any female justices for another nine years.[25]
However, the Idaho Court of Appeals continued to push forward and encourage the representation of women on the bench. After Justice Silak left the Idaho Court of Appeals in 1993, her seat was filled by another female, Judge Karen Lansing who served until 2015. Prior to her seat on the Idaho Court of Appeals, Judge Lansing worked as an assistant city attorney for the City of Boise, after graduating from the University of Washington’s School of Law.[26] Thereafter, Judge Lansing went into private practice, joining the law firm Hawley Troxell Ennis & Hawley where she became partner.[27] On the bench, Judge Lansing would carefully craft her opinions in order to convey the reasoning for the decision and ensure the result of the case was fair and just.[28] While on the Idaho Court of Appeals, Judge Lansing authored more than 2,600 appellate decisions.[29]
2015 to Today
Following Judge Lansing’s retirement, her seat was filled by another trailblazing female. In 2015, Molly Huskey was appointed to Judge Lansing’s seat on the Idaho Court of Appeals by Governor Butch Otter.[30] Prior to her appointment, Judge Huskey served as a public defender and prosecutor in Bonneville County, Idaho and was appointed to serve as the state appellate public defender by Governor Dirk Kempthorne in 2002.[31] In 2011, Governor Otter appointed Judge Huskey to the Idaho state district court bench where she served as a district court judge for the Third Judicial District of Idaho.[32] Judge Huskey continues to serve on the Idaho Court of Appeals with her current term ending in 2029.[33]
In November of 2016, Idaho voters elected Robyn Brody to the Idaho Supreme Court, marking the first time a woman was on the state’s highest bench since Justice Trout’s retirement nine years prior.[34] Unlike her predecessors, Justice Brody was the first woman elected to the Idaho Supreme Court rather than first being appointed by the governor.[35] At the time Justice Brody was elected she was one of four candidates on the ballot during the primaries for the vacant position.[36] However, the primaries resulted in a runoff election, with Justice Brody prevailing in the general election.[37] Justice Brody is currently serving a second term after she was re-elected in May of 2022.[38] Prior to serving on the Idaho Supreme Court, Justice Brody practiced in private practice in the Magic Valley for over 20 years.[39]
Less than a year later, in 2017, Idaho again created history, when Judge Jessica Lorello was appointed to the Idaho Court of Appeals.[40] For the first time in Idaho history, two females served simultaneously on the Idaho Court of Appeals. In 2021, Judge Lorello assumed Judge Huskey’s position as the Chief Judge on the Idaho Court of Appeals.[41] Governor Butch Otter appointed Amanda Brailsford 
to the Idaho Court of Appeals in 2018, and at that time the Court was comprised of three female and one male judge, a first in Idaho history.[42]
In 2018, Justice Joel Horton announced his retirement from the Idaho Supreme Court. As a result of the vacancy, eleven applicants applied for his seat. For the first time in history, six of those applicants were women, three of whom were selected as finalists.[43] While a male was appointed for this vacancy, in 2021, Governor Little appointed Colleen Zahn to the Idaho Supreme Court, filling Chief Justice Roger Burdick’s seat on the bench when he retired.[44] Justice Zahn’s appointment to the Idaho Supreme Court marked the third female to be appointed to serve on the state’s highest bench, and the second time in history two female justices served at the same time. It also marked the first time in history the Idaho Judicial
Council submitted all female nominees for the Idaho Supreme Court to the governor. [45]
Most recently, on November 6, 2023, Governor Little appointed District Court Judge Cynthia Meyer to the Idaho Supreme Court, creating history, as her appointment marked the first time the Idaho Supreme Court is comprised of mostly women Justices.[46] Meyer was one of four finalists recommended to Governor Little by the Idaho Judicial Council. Prior to being appointed to the Idaho Supreme Court, Meyer 
practiced in private practice in Northern Idaho, served as an adjunct professor at North Idaho College, and was a District Court Judge for the First Judicial District.[47]
Progress on the Federal Bench
The Idaho state courts are not the only courts undergoing a positive transformation towards gender equality on the bench. The federal bench has also witnessed the appointment of distinguished female judges. Idaho women like Candy Dale and Debora Grasham have played pivotal roles in shaping legal precedents and influencing the course of American jurisprudence. Their impact extends beyond the courtroom, inspiring future generations and reinforcing the principle that justice knows no gender.
Judge Grasham after being appointed stated “I have known and admired Judge Dale for many years. Hers are big shoes to fill, not only because she has been such an outstanding jurist but because she has broken the proverbial glass ceiling at our court, allowing people like me to dream that I could someday serve in a similar capacity.”[48] This comment reinforces the critical role these females have in our society and their impact on not only female attorneys in the state of Idaho, but also those who have yet to go to law school or take the bar.
President Biden nominated, and the United States Senate confirmed, Idaho Court of Appeals Judge Amanda Brailsford as the first woman United States District Judge for the District of Idaho, another turning point and milestone in the history of women in the Idaho Judiciary.[49]
"The appointment of these women to the Idaho State bench and federal bench is a testament to the evolving landscape of the legal profession."
Conclusion
The appointment of these women to the Idaho State bench and federal bench is a testament to the evolving landscape of the legal profession. As these women continue to break barriers and contribute to the pursuit of justice, they pave the way for a more inclusive and diverse judiciary. Their stories serve as a source of inspiration, reminding us of the importance of representation and the need for continued efforts to promote gender equality in the legal field.
Despite their undeniable contributions, female judges in America have faced and continue to face unique challenges. Gender bias, stereotypes, and systemic obstacles have tested the resolve of these trailblazers. Their ability to navigate and overcome these challenges not only demonstrates their individual resilience but also underscores the importance of ongoing efforts to address gender disparities in the legal profession. Professional support is key. The Idaho Women Lawyers has played in an important role in encouraging women to achieve judgeships, and the Judiciary also provide guidance to encourage a diverse judicial candidate pool.[50]
As of March 2023, Wisconsin, Washington and Illinois were the leading states with the highest percentage of women on their states’ highest benches.[51] Wisconsin’s highest court is currently comprised of one male and six females, making the state’s bench comprised of 85.7% female.[52] While Idaho was second to last in the nation in 2016 with respect to women appointed to the Idaho Supreme Court, with the recent appointment of Justice Meyer, Idaho is now one of five other states where the state’s highest bench is comprised of three females, two males.[53] As such, Idaho ranks within the top ten states with the most women on the state’s highest bench, demonstrating a significant shift towards gender equality on the bench at all levels.
While Idaho and the entire nation are making significant strides forward towards creating a more diverse bench, there is still significant room for improvement. When asked when there would be “enough” women on the Idaho Supreme Court, Justice Brody replied “When it’s normal – when this isn’t a historic event.”[54] Former Justice Trout echoed this sentiment stating “I don’t think it’s the numerical number that makes a difference. It’s the fact that it’s routine.”[55]
Hailee Elledge
Hailee Elledge is an associate in the firm’s insurance and litigation practice groups. Her practice experience includes creditor’s rights, insurance defense, commercial litigation, construction defect, and real estate disputes. While in law school at the University of Idaho College of Law, Hailee served as an Associate Editor and Chief Articles Editor for the Idaho Critical Legal Studies Journal and externed with the U.S. District Court, District of Idaho for the Honorable Ronald E. Bush. Outside of school, Hailee volunteered with the Idaho Trial Lawyers Association Street Law Clinic, where she recognized her passion and enthusiasm for helping others.
Cathy Silak
Cathy Silak is a member of the firm’s appellate and mediation practice groups. She began her career with Hawley Troxell in 1984 and became partner in 1988. In 1990, Cathy was appointed by Governor Cecil D. Andrus as the first woman judge on the Idaho Court of Appeals. She was appointed in 1993 to the Idaho Supreme Court and served until 2000. In 2001 she resumed her partnership with Hawley Troxell. After serving as the Founding Dean of Concordia University School of Law, Cathy returned to Hawley Troxell once again in 2017 as Of Counsel. Cathy has practiced law in California and Washington, D.C., and was appointed as Assistant United States Attorney for the Southern District of New York. Cathy earned the Idaho State Bar’s Distinguished Lawyer Award in 2010.
[1] News briefs: Idaho’s Supreme Court is made up of a majority of women for the first time, Inlander (2023), https://www.inlander.com/news/news-briefs-idahos-supreme-court-is-made-up-of-a-majority-of-women-for-the-first-time-26972393 (last visited Dec 27, 2023). Justice Meyers began her duties in December 2023. Press Release, State of Idaho Judicial Branch, Justice Cynthia Meyer to take Public Oath of Office on Jan. 5 (Dec. 14, 2023), available at https://isc.idaho.gov/sites/default/files/press-release-documents/20231214-meyer-investiture.pdf (last visited Jan. 22, 2024).
[2] State Supreme Court diversity – may 2022 update Brennan Center for Justice (2023), https://www.brennancenter.org/our-work/research-reports/state-supreme-court-diversity-may-2022-update (last visited Dec 27, 2023).
[3] Betsy Z. Russell Brussell Idahopress.Com, Idaho lags nation in number of female judges AP News (2022), https://apnews.com/article/idaho-idaho-supreme-court-butch-otter-5ca974eedba34ddc8dcb589bae6611d1 (last visited Dec 27, 2023).
[4] Id.
[5] State Supreme Court diversity – april 2021 update Brennan Center for Justice (2023), https://www.brennancenter.org/our-work/research-reports/state-supreme-court-diversity-april-2021-update (last visited Dec 27, 2023).
[6] Hon. Deborah A. Bail, Fourth District Court State Bar (2022), https://isb.idaho.gov/blog/hon-deborah-a-bail-fourth-district-court/ (last visited Dec 27, 2023).
[7] Id.
[8] Debora K. Kristensen “1885-1975: The First 50 Women in Idaho Law” 95-96 (2005).
[9] First woman joins Court of Appeals, The Spokesman-Review, August 3, 1990, at B1, https://news.google.com/newspapers?id=3NRYAAAAIBAJ&sjid=hfADAAAAIBAJ&pg=6493%2C1304835 (last visited Dec 27, 2023).
[10] Woman judge hopes role boosts others, Mosco-Pullman Daily News, August 3, 1990, at 10A, https://news.google.com/newspapers?id=0pMrAAAAIBAJ&sjid=l9AFAAAAIBAJ& pg=5633%2C310588 (last visited Dec 27, 2023).
[11] Blue Book, Judicial Branch – Idaho Secretary of State, 245, available at https://sos.idaho.gov/blue_book/2023/BlueBook_2023_2024.pdf (last visited Jan. 22, 2024).
[12] Cathy Silak joins Hawley Troxell, Idaho Business Review, June 29, 2017, https://idahobusinessreview.com/2017/06/29/cathy-silak-joins-hawley-troxell/.
[13] Jeanne Huff, 2016 Lifetime Achievement Award: Linda Copple Trout, Justice, Idaho Supreme Court in Boise Idaho Business Review (2016), https://idahobusinessrevi ew.com/2016/11/17/2016-lifetime-achievement-award-linda- copple-trout-justice-idaho-supreme-court-in-boise/ ; See also Kara Garten, Justice Trout gives tips to law students, Moscow-Pullman Daily News, October 8, 1992, at 3A, https://news.google.com/newspapers?id=YQskAAAAIBAJ&pg= 1574%2C3084041.
[14] WOMAN IS ‘STUNNED’ TO BE ON HIGH COURT, Desert News, August 23, 1992, https://www.deseret.com /1992/8/23/19001073/woman-is-stunned-to-be-on-high-court.
[15] Kara Garten, Justice Trout gives tips to law students, Moscow-Pullman Daily News, October 8, 1992, at 3A, https://news.google.com/newspapers?id=YQskAAAAIBAJ&pg=1574%2C3084041.
[16] Jeanne Huff, 2016 Lifetime Achievement Award: Linda Copple Trout, Justice, Idaho Supreme Court in Boise Idaho Business Review (2016), https://idahobusinessrevi ew.com/2016/11/17/2016-lifetime-achievement-award-linda- copple-trout-justice-idaho-supreme-court-in-boise/ ; See also Kara Garten, Justice Trout gives tips to law students, Moscow-Pullman Daily News, October 8, 1992, at 3A, https://news.google.com/newspapers?id=YQskAAAAIBAJ&pg=1574%2C3084041.
[17] Id.
[18] Blue Book, Judicial Branch – Idaho Secretary of State, at.245.
[19] Justice faces unusual election challenge, The Spokesman-Review, April 24, 2000, at A7, https://news.google.com/newspapers?id=V7syAAAAIBAJ&sjid=OfIDAAAAIBAJ&pg=6529%2C3366447.
[20] Id.
[21] Liz Patterson Harbauer, Idaho business out loud interview: Cathy Silak, of counsel at Hawley Troxell Idaho Business Review (2020), https://idahobusinessreview.com/ 2020/01/31/idaho-business-out-loud-interview-cathy-silak-of-counsel-at-hawley-troxell/ (last visited Dec 27, 2023).
[22] Bob Fick, Silak loses to Eismann; A challenger unseats an Idaho Supreme Court justice, The Lewiston Tribute, May 24, 2000, https://www.lmtribune.com/northwest/silak-loses-to-eismann-a-challenger-unseats-an-idaho-supreme-court-justice/article_20fce9ac-27fd-5f43-b203-90d2bb0f8d76.html.
[23] Blue Book, Judicial Branch – Idaho Secretary of State, at 245.
[24] Betsy Russell, High court justice to retire, The Spokesman-Review, May 24, 2007, https://www.spokesman.com/stories/2007/may/24/high-court-justice-to-retire/.
[25] Blue Book, JUDICIAL BRANCH – IDAHO SECRETARY OF STATE, at 245.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] 3rd District judge appointed to appeals court, Idaho Press, July 3, 2015, https://www.idahopress.com/news/local/3rd-district-judge-appointed-to-appeals-court/article_32f6beae-213e-11e5-bf7a-8f3985b04331.html.
[31] Id.
[32] Id.
[33] See Idaho Constitution ARTICLE V JUDICIAL DEPARTMENT § 6.
[34] Betsy Russell, Brody on joining high court: ‘It is a position of trust like no other’, The Spokesman-Review, January 5, 2017, https://www.spokesman.com/blogs/boise/2017/jan/05/brody-joining-high-court-it-position-trust-no-other/ ; See also “Primary Election Results,” Idaho Secretary of State Election Division, May 17, 2016, https://sos.idaho.gov/elect/results/2016/Primary/statewide_totals.html.
[35] Samantha Malott, Candidates vying for seat on Idaho Supreme Court bench, Moscow-Pullman Daily News, May 7, 2016, https://dnews.com/local/candidates-vying-for-seat-on-idaho-supreme-court-bench/article_d56dd9f1-edaa-523f-8476-335e18ff4c1b.html.
[36] Id.
[37] “Nov 08, 2016 General Election Results” Idaho Secretary of State Election Division, https://sos.idaho.gov/elect/results/2016/General/statewide_totals.html.
[38] Christian Lords, Idaho Supreme Court Justice Robyn Brody will seek reelection, Idaho Capital Sun, January 7, 2022, https://idahocapitalsun.com/briefs/idaho-supreme-court-justice-robyn-brody-will-seek-reelection/.
[39] Betsy Russell, Brody on joining high court: ‘It is a position of trust like no other’, THE SPOKESMAN-REVIEW, JANUARY 5, 2017, https://www.spokesman.com/blogs/boise/2017/jan/05/brody-joining-high-court-it-position-trust-no-other/.
[40] Betsey Russell, Otter names Jessica Lorello to Idaho Court of Appeals, THE SPOKESMAN-REVIEW, October 3, 2017. https://www.spokesman.com/blogs/boise/2017/oct/03/otter-names-jessica-morello-idaho-court-appeals/.
[41] New chief judge appointed for Idaho Court of Appeals, Local News 8, December 10, 2021, https://localnews8.com/news/idaho/2021/12/10/new-chief-judge-appointed-for-idaho-court-of-appeals/.
[42] “Idaho Court of Appeals,” Ballotpedia, https://ballotpedia.org/Idaho_Court_of_Appeals.
[43] In a first, more women than men apply to Idaho high court, Associated Press News, July 31, 2018, https://apnews.com/general-news-ac2e2194816d4475b74a14db48f1ceb8.
[44] Audrey Dutton, Gov. Brad Little appoints Colleen Zahn to Idaho Supreme Court, Idaho Capital Sun, June 1, 2021. https://idahocapitalsun.com/briefs/gov-brad-little-appoints-colleen-zahn-to-idaho-supreme-court/.
[45] Devon Downey, Idaho Judicial Council submits three finalists, all women, for Supreme Court vacancy, Idaho Reports, April 28, 2021. https://blog.idahoreports.idahoptv.org/2021/04/28/idaho-judicial-council-submits-three-finalists-all-women-for-supreme-court-vacancy/.
[46] News briefs: Idaho’s Supreme Court is made up of a majority of women for the first time, Inlander (2023), https://www.inlander.com/news/news-briefs-idahos-supreme-court-is-made-up-of-a-majority-of-women-for-the-first-time-26972393 (last visited Dec 27, 2023).
[47] Clark Corbin, District Judge Cynthia Meyer appointed to Idaho Supreme Court, Idaho Capital Sun, November 6, 2023, https://idahocapitalsun.com/2023/11/06/district-judge-cynthia-meyer-appointed-to-idaho-supreme-court/.
[48] Steve Smith, U.S. Magistrate Judge selected, Clearwater Tribune, December 22, 2021, https://www.clearwatertribune.com/news/community_news/u-s-magistrate-judge-selected/article_c5bf69b8-6348-11ec-a8fd-afd3ce207b45.html.
[49] “Hagerman’s Brailsford becomes Idaho’s first female US District judge,” Times-News, May 19, 2023, https://magicvalley.com/news/hagermans-brailsford-becomes-idahos-first-female-us-district-judge/article_05430cf6-f5f7-11ed-a150-8f345223539f.html.
[50] Idaho Women Lawyers is a non-profit organization founded in 1986 to promote the advancement of women in the legal profession in Idaho.
[51] Peter Cameron and Hina Suzuki, “Females justices: A list of states with the most – and least – women on their supreme courts” The Badger Project, March 23, 2023. https://thebadgerproject.org/2023/03/23/states-with-the-most-and-least-female-justices-on-their-top-courts/.
[52] Id.
[53] Id.
[54] Betsey Russell, Silak, Trout and Brody talk women on Idaho’s highest court, The Spokesman-Review, September 18, 2017, https://www.spokesman.com/blogs /boise/2017/sep/18/silak-trout-and-brody-talk-women-idahos-highest-court/.
[55] Id.
The Basics and Beyond: Nuances and Types of Nouns
By Tenielle Fordyce-Ruff
Nouns are one of the basic building blocks of speech and writing. In fact, we learn nouns so early in our development that we don’t really think much about them. Think about interacting with a baby just learning to speak. You point to objects and name them – you teach nouns.
While we learn nouns, they aren’t all simple. Some have irregular plurals. Others take different modifiers depending on whether you can count them. Some are abstract and you have to be careful to match number for those. And while you might just know some of these rules, this month I’ll give you more detail so that you can ensure you’re using nouns correctly.
As a little refresher, nouns are names. They name people, places, and things. They also have cases, nominative, objective, and possessive. Fortunately, in English only possessive nouns change spellings. Nouns also have properties of number (singular/plural), gender (masculine/feminine/neutral), and person (first, second, third). The spelling of a noun usually changes for number, rarely changes for gender, and never changes for person. And not to stray too far from nouns, but they need to agree with the verbs in the sentence.
So, with that brief refresher out of the way, let’s look at types of nouns and some nuances.
Common and Proper Nouns
As the name implies, these are the most common nouns. They are generic in a sense. They name nonspecific people, places, or things: judge, county, religion.
Common nouns have one nuance to remember: plurals. While most English nouns add -s or -es to form the plural, some common nouns have irregular plurals:
Foot – Feet
Mouse – Mice
Man – Men
Woman – Women
Life – Lives
Child – Children
Chances are that if you’re a native English speaker, you don’t even think about these types of irregular plurals. But some plurals are the same as the singular, and you need to pay attention to the verb to make sure you let the reader know if you’re writing about one or more.
Deer – Deer
Fish – Fish
And more specific to the law, make sure you create the correct plurals for some common nouns that have a postpositive adjective. These phrases come from French and have a noun followed by an adjective, unlike most adjectives in English that come before the noun.
Notary public – Notaries public
Attorney general – attorneys general
Proper nouns, on the other hand, name specific people, places, or things: Justice Roberts, Boundary County, Christianity.
Just like common nouns, these nouns add -s or -es to form the plural, and the regular rules for possessives apply. So, if a proper noun needs to become plural, don’t use an apostrophe:
We are going to visit the Reeds.(not We are going to visit the Reed’s.)
Likewise, add an ‘s to a singular proper noun to form a possessive.
Justice Bevan’s opinion was released yesterday.
Concrete and Abstract Nouns
Concrete nouns name something you can perceive with your five senses: dog, flower, sky. Abstract nouns name things you cannot perceive with your five senses: love, the public good, happiness.
When concrete nouns in a sentence relate to each other, they must agree in number.
Both attorneys waited until the last minute to file the complaints.
Each attorney filed the complaint early.
This rule can change, however, with abstract nouns. Some idiomatic expressions use a singular abstract noun with a plural concrete noun.
Three witnesses promised to appear, and they all kept their word.
Countable and Uncountable Nouns
The names here probably make this very obvious. You can count countable nouns, but not uncountable nouns. For instance, try to count books. Now try to count milk.
While this might seem silly, knowing whether a noun is countable helps you correctly express some ideas. When you need to indicate quantity or relative quantity.
When you want to indicate a generic quantity of something, you use amount with uncountable nouns and number with countable nouns.
The amount of spilled milk was incredible.
The number of books I read is astonishing.
And when you need to indicate the opposite of more of something, you use less with uncountable nouns and fewer with countable nouns.
I need to drink less coffee.
She reads fewer books than I do.
Compound and Collective Nouns
(Confession: I put these together because they both begin with “C” and I wanted the list to be in parallel. That really is the only similarity.) Compound nouns are formed from two smaller words: sunflower, snowball, textbook. Collective nouns indicate a group of things as a whole: board, bunch, court.
Collective nouns can be tricky in writing when we need to replace them with a pronoun. In many instances, when speaking we use a plural pronoun. But in writing, collective nouns always take a singular pronoun.
The court has hearings today. It will be very busy.
This makes sense, as we don’t use plural verbs with collective nouns.
The court goes to Moscow next month.
Of course, this isn’t a problem for compound nouns. We would never replace a plural compound noun like sunflowers with a singular pronoun.
Appositive Nouns
Well, so much for parallelism in my list! An appositive is a noun or noun phrase that identifies or describes another noun or noun phrase. For instance:
I sit on the Editorial Advisory Board for The Advocate, an official publication of the Idaho State Bar.
There, the phrase in bold describes The Advocate.
Appositives have a few nuances. First, they must agree in number, gender, case, and person with the noun they refine.
John C. Calhoun, vice president under both John Quincy Adam’s and his archrival Andrew Jackson, had a career unique in American history.[i]
Here, both Calhoun and vice president are in the nominative case. It would be incorrect to write:
John C. Calhoun’s career, vice president under both John Quincy Adam’s and his archrival Andrew Jackson, was unique in American history.[ii]
There, Calhoun’s is possessive, but vice president isn’t.
Next, appositives can be restrictive or non-restrictive, and that affects punctuation. A restrictive appositive exclusively identifies the noun it refers to; a non-restrictive one explains the noun more. So, if an appositive is non-restrictive, set it off with commas, parentheses, or em-dashes.
Conclusion
Although nouns aren’t a part of speech we tend to worry much about when writing, understanding a few nuances can ensure your writing is clear and correct.
[i] Bryan A. Garner, The Redbook: A Manual on Legal Style 146 (2d ed 2006).
[ii] Id.
Tenielle Fordyce-Ruff is a member of the Idaho State Bar and an
Associate Clinical Professor of Law at Sandra Day O’Connor College of Law
Arizona State University.
Rule Changes Effective March 1st, 2024
Notice of Judicial Recruitment Workshop – Feb. 14th
A Judicial Recruitment Workshop will be held Wednesday, February 14, 2024, from 12:00 Noon – 1:00 p.m. MST via Zoom. This workshop will provide information to attorneys about what it is like to be on the bench, the selection process, the opportunities available, and benefits of judicial service. If you are interested in attending, please RSVP to IDCourts@idcourts.net and you will be e-mailed a link to the workshop.
The Corporate Transparency Act: An Overview and Its Impact on Lawyers and Law Firms by Tori J. Osler and Jacqueline N. Walton
by Tori J. Osler and Jacqueline N. Walton
It’s here… The Corporate Transparency Act (“the CTA”) is now in effect and its implementation will impact law firms, attorneys, and their personnel who are filing and registering entities on behalf of clients in the United States. Starting January 1, 2024, the CTA will require many companies formed or registered to do business in the U.S. to report the identities of their beneficial owners and company applicants to the U.S. Department of Treasury’s Financial Crimes and Enforcement Network (“FinCEN”). In this article, we will examine what the CTA is, who it applies to, how you can help your clients comply with the same, and some of the immediate practical implications attorneys and law firms should be aware of.
The CTA: What Is It and How Did We Get Here?[i]
The CTA is intended to combat a lack of transparency that may facilitate money laundering, corruption, fraud, terrorism financing, tax fraud, trafficking, and other illicit activities.[ii] The goal of the CTA is to prevent bad actors from utilizing complex corporate structures and shell companies to hide their identities and move money through the U.S. financial system.[iii]
Although the CTA and its requirements will likely surprise a number of our clients, it has been a long time in the making. In 1990, the U.S. joined other countries in forming the Financial Action Task Force (“FATF”), which addresses money laundering and terrorist financing by creating international standards of practice.[iv]Although the U.S. has been an active member of FATF since its inception, we have not kept pace with other countries in implementing the FATF’s recommendations.[v]
The enactment of the CTA and its related regulations – 31 CFR § 1010.100, et seq. (“Regulations”) – are the culmination of a multi-year effort to bring the U.S. into compliance with the FATF recommendations and into alignment with other major Western powers.[vi] The CTA was enacted as a part of the National Defense Authorization Act for Fiscal Year 2021 (“NDAA”).[vii] While President Trump initially vetoed the NDAA, Congress overrode the veto on January 1, 2021.[viii]
The U.S. Department of Treasury (“Treasury”) issued the final Regulations on reporting requirements under the CTA on September 30, 2022.[ix] Thereafter, on December 16, 2022, Treasury issued a notice of proposed rulemaking regarding access to and disclosure of beneficial ownership information.[x]
The Details: Who It Applies to and How to Comply
While the principles and concepts behind the CTA are relatively straight forward, the implementation can be complex.
Under the CTA, only those companies which meet the criteria for a “reporting company” must disclose the identity of their “beneficial owners.”[xi] A “reporting company” under the CTA is any corporation, limited liability company, or “other similar entity” which is formed through filing with a secretary of state (or similar) for domestic entities or through filing in accordance with applicable foreign law and then registering to do business in the U.S. through filing as a foreign entity in accordance with state law.[xii]
While no definition of “other similar entities” currently exists under the CTA or Regulations, FinCEN has indicated that the requirement of “filing” with a secretary of state or foreign government is determinative – indicating that the phrase is intended to be interpreted broadly.
Accordingly, limited, limited liability, and limited liability limited partnerships will probably qualify as “reporting companies;” whereas sole proprietorships, general partnerships, and some common law trusts may not qualify where no filing requirement for these entity types exists.[xiii] Additionally, there are several types of entities that are exempted from the definition, the more critical of which include:
- Publicly traded companies,
- Political organizations,
- Banks and bank-type entities,
- Certain tax-exempt entities,
- Registered investment entities,
- Certain public accounting firms, but not law firms, and
- “Large operating companies.”
While the “large operating company” exception will not apply when such an entity is first formed, it may apply once the entity meets all three of the following requirements: (i) more than 20 employees in the U.S.;[xiv] (ii) physical operating presence in the U.S.; and (iii) previous year’s federal tax filing showing at least $5 million in gross receipts or sales from U.S. sources. This requirement can be met by receipts from subsidiaries or other entities through which the company operates.[xv]
Once a determination is made that an entity is in fact a non-exempt “reporting company,” then the determination must be made as to which owners constitute “beneficial owners” for whom filings with FinCEN are required. Under the CTA, a “beneficial owner” of a reporting company is defined as an individual who – directly or indirectly – through any contract, arrangement, understanding, relationship, or otherwise either:
- Exercises “substantial control” over the entity; or
- Owns or controls not less than 25% of the “ownership interests” of the entity.
“Substantial control” is defined under the Regulations as an individual who: (i) serves as a senior officer, (ii) has the authority over the appointment or removal of any senior officer or a majority of the board of directors; (iii) directs, determines, or has substantial influence over important decisions made by the reporting company, or (iv) has any “other form of substantial control” over the reporting company.[xvi]
With the catchall of “any other form of substantial control,” direct or indirect control, no matter how labeled, will constitute “substantial control” for purposes of the filing requirements.[xvii] Senior officers will likely always be deemed to have substantial control and include positions such as president, chief financial officer, general counsel,[xviii] chief executive officer, chief operations officer, and any other “officer” who perform similar functions.[xix]
Owning not less than 25% of the “ownership interests” in the company is the other standard for being considered a “beneficial owner.” As one can imagine, the definition of “ownership interests” is complex, but is generally defined under 31 C.F.R. §1010.380(d)(2) as including any equity, stock, or similar instrument, interest in a joint venture, any capital or profit interest in an entity, any instrument convertible (with or without consideration into any share) or any warrant or right to purchase, sell or subscribe to a share or interest in a joint venture or an entity, a put, call, straddle, or other option or privilege, or any other instrument, contract, arrangement, understanding, relationship, or mechanism used to establish ownership.
Notwithstanding all of the foregoing, the CTA and the Regulations both recognize certain exceptions to the definition of “beneficial owner” which include: a minor child, an individual acting as a nominee, intermediary, custodian, or agent on behalf of another individual, an employee of a reporting company (provided such person is not a senior officer), an individual whose only interest is a future interest through a right of inheritance, and a creditor of a reporting company.[xx]
Company Applicants. Every reporting company created after January 1, 2024 is required to have a “Company Applicant,” which is defined as any individual who: (a) with respect to a domestic reporting company, directly files the document that creates the domestic reporting company; (b) with respect to a foreign reporting company, directly files a document that first registers the foreign reporting company; and (c) whether for a domestic or a foreign reporting company, the individual who is primarily responsible for directing or controlling such filing if more than one individual is involved in the filing of the document.[xxi] Therefore, under the forgoing description, a legal assistant and the attorney who directs such legal assistant to file or register an Idaho limited liability company qualifies as a Company Applicant.
Reporting to FinCEN. All non-exempt entities filed on or after January 1, 2024, will need to register within 90 days of formation with FinCEN.[xxii] All entities filed before January 1, 2024, must file within FinCEN before January 1, 2025.[xxiii] Reporting is technically the responsibility of the reporting company, but clients will likely rely on their counsel for help with compliance.[xxiv] The first report to FinCEN for an entity must identify each beneficial owner and each Company Applicant by full legal name, birth date, residential or business address, and an identifier number from an “acceptable identification document” (or a FinCEN Identifier Number).[xxv]
Penalties. Penalties for non-compliance are both civil and criminal. Willful violations, providing false information, or failure to file complete and accurate reports, can result in imprisonment up to two years and/or a $500 per day fine, up to $10,000. Unauthorized disclosure or unauthorized use of sensitive beneficial owner information can result in $500 per day penalties up to $250,000 and/or five years’ imprisonment – and if part of a larger pattern, penalties up to $500,000 – and 10-years’ imprisonment are included.[xxvi]
The Immediate Practical Implications on Law Firms
The CTA represents one of the most significant changes to the laws regulating small businesses in recent times. The new law will impact millions of companies across the U.S. As of the time of drafting this article (before January 1, 2024), the full spectrum of practical implications and impacts of the CTA on lawyers remains largely unknown.[xxvii] However, lawyers from solo practitioners to the largest international firms will be expected by clients to create entities, bring existing entities into compliance, and advise and assist clients with their CTA filings and updating requirements. These implications will impact lawyers beyond the corporate practice. As such, lawyers and law firms in all practices will need to know and consider the requirements of the CTA and its implications.
From a practical standpoint: lawyers should be thinking about meeting these ongoing compliance obligations; including whether requirements should be placed on clients and underlying beneficial owners to provide all required information to the firm registering entities on a client’s behalf and what to do when individual owners refuse to comply. Other items for consideration include client intake questions, ethics and conflict searches, and modifying standard engagement letters to delineate the scope of attorney’s duties with respect to advising on the CTA, forming entities, assisting with FinCEN filings, evaluating issues with existing entities, and assessing whether updates to filings will be required due to income levels of the entity, number of employees, or change in ownership percentages and control.
Lawyers should also consider including clauses in operating agreements, shareholder agreements, joint venture agreements, and other corporate governance documents to ensure compliance with the CTA and to include remedies for non-compliance of the same. Finally, consideration should be paid to whether leases, loan documents, trust documents, estate planning documents, and other agreements should also include certain provisions to ensure compliance with CTA. Likewise, law firms should also consider limiting the number of personnel and staff filing formation documents with state agencies so that the number of Company Applicants within the law firm are limited and experienced.
Tori J. Osler
Tori J. Osler is an associate at Holland & Hart LLP. She counsels clients in commercial real estate development, real estate finance, and multifamily and affordable housing projects. Tori is a member of the firm’s CTA Committee which will serve as resource for others within Holland & Hart LLP for the creation of new entities after January 1, 2024.
Jacqueline N. Walton
Jacqueline N. Walton is a real estate partner with Holland & Hart LLP. She focuses her practice on commercial real estate on acquisitions and sales, development, leasing, financing, and zoning and land use.
[i] The authors wish to recognize and thank: Marcus Painter and Jordan J. Bunch of Holland & Hart LLP for their July 2023 Colorado Real Estate Symposium Paper and Presentation entitled: “Tick, Tick, Tick, Boom! the Corporate Transparency Act is Upon Us,” which paper was relied upon in preparing this article.
[ii] See 31 U.S.C. § 5311(1)-(5).
[iii] See 31 U.S.C. § 5311(1)-(5).
[iv] https://home.treasury.gov/policy-issues/terrorism-and-illicit-finance/financial-action-task-force; https://www.fatf-gafi.org/en/countries/detail/United-States.html.
[v] https://www.fatf-gafi.org/en/countries/detail/United-States.html.
[vi] At least 30 other countries have adopted some form of register for beneficial ownership information. See 87 Fed. Reg. 59500 (https://www.federalregister.gov/documents/2022/09/30/2022-21020/beneficialownership-information-reporting-requirements).
[vii] See 134 Stat. 3388, Public Law 116-283- Jan. 1, 2021.
[viii] https://www.reuters.com/business/aerospace-defense/trump-vetoes-major-defense-bill-despite-strong-backing-congress-2020-12-23/.
[ix] See 87 Fed. Reg. 59498-59596 (https://www.federalregister.gov/documents/2022/09/30/2022-21020/beneficial-ownership-information-reporting-requirements).
[x] See 86 Fed. Reg. 77404-77457 (https://www.federalregister.gov/documents/2022/12/16/2022-27031/beneficial-ownership-information-access-and-safeguards-and-use-of-fincen-identifiers-for-entities).
[xi] See 31 CFR§1010.380(c)(1) and §1010.380(d).
[xii] See 31 CFR §1010.380(c)(1).
[xiii] https://www.federalregister.gov/documents/2022/09/30/2022-21020/beneficial-ownership-information-reporting-requirements.
[xiv] FinCEN refers to IRS regulations for determination of whether an employee is “full time”–generally considered 30 hours per week or 130 hours per month. FinCEN’s guidance on when this number is evaluated (snapshot or average or other) is of little use. 87 Fed. Reg. 59543 (https://www.federalregister.gov/documents/2022/09/30/2022-21020/beneficial-ownership-information-reporting-requirements).
[xv] A newly formed entity will not be able to qualify for this exception in its first tax year simply because it will not have $5 million in gross receipts on a prior year’s tax return.
[xvi] See 31 CFR §1010.380(d)(1).
[xvii] The Regulations spell this out in more detail with examples of what constitutes exercising control, such as having board representation, rights related to financing, control over controlling entities, and more. See 31 CFR §1010.380(d)(ii).
[xviii] “FinCEN considers the role of general counsel to be ordinarily more substantial [than a treasurer or secretary role] and has therefore retained this role as part of the definition of ‘senior officer.’” 87 Fed. Reg. 59526 (https://www.federalregister.gov/documents/2022/09/30/2022-21020/beneficial-ownership-information-reporting-requirements).
[xix] See 31 CFR §1010.380(f)(8).
[xx] See 31 CFR §1010.380(e).
[xxi] Id.
[xxii] See 31 CFR §1010.380(a)(1)(i) (A)–(B); (ii)(A)–(B).
[xxiii] See 31 CFR §1010.380(a)(1)(iii).
[xxiv] The forthcoming forms and protocols for filing the required information with FinCEN will further inform whether filings on behalf of reporting companies can be done by law firms, or law firms will merely assist the client with filing with FinCEN.
[xxv] 87 Fed. Reg. 59546 and 59507. See also: https://www.federalregister.gov/documents/2022/09/30/2022-21020/beneficial-ownership-information-reporting-requirements.
[xxvi] See 31 CFR §1010.380(g).
[xxvii] Given how new the CTA is, regulations and rules may change between the date our article was drafted and printing of the same.
Letters to the Editor
Letter to the Editor: Cox
Dear Editor,
I read the article “Breaking the Chains of Stigma: Safeguarding Substance-Using Parents and their Children in Civil Legal Matters” with more than a little dismay and trepidation.
The article repeatedly refers to “substances,” leaving it unclear as to whether marijuana/THC usage is the primary “substance” discussed or even one of them. This is an important distinction at the outset. I believe our judges do an excellent job of examining the problems before them and distinguishing between so-called “hard drug” addiction and recreational marijuana use.
More concerning is the article’s focus on the victimhood of addicts, a focus which is mis-directed. The article is about child cases, and a child’s needs and safety are paramount. The author claims that drug use is “often misinterpreted and stigmatized by society at large.” No evidence, even anecdotal, is provided to suggest our judges are neglecting their duty to rule in the best interest of the children before them, by stigmatizing addicts. The emphasis in the criminal justice system on the use of specialty courts, rehabilitation, and recovery also undercuts the premise that drug addicts are being punished/stigmatized in society and/or in child welfare/custody cases.
The article implies that children might not need protection from a custodial parent using hard drugs such as methamphetamine, heroin, or cocaine. It resurrects the lie uttered by many addicts that they are just social or occasional users. In my estimation it is nonsensical and even more harmful to describe protecting children from the scourge of addiction as “unwarranted scrutiny and judgment.” This article comes at a time when tens of thousands of people are dying of overdoses, largely due to the Fentanyl epidemic. Our judges and lawyers are well aware of these problems, as they witness the consequences of addiction. Most of the time, our legal professionals are compassionate towards parents and loving/protective towards children.
Sincerely,
Neil Presley Cox
Clarkston, Washington
Letter to the Editor: Dominick
Dear Ms. Welfley,
I read with interest Judge Robert L. Jackson’s article on “Civility in the Profession: Is it Gone Forever” contained in the November/December 2023 edition of The Advocate. In his article, he discussed the adoption by the Idaho Bench and Bar of the “Standards of Civility in Professional Conduct.” He appeared to have some questions about the adoption of the civility rules. Other members of the Bench and Bar might also wonder about the history of the rules.
I can attest to the history and reasons for the adoption of the professional civility rules. I was admitted to the Idaho Bar in 1982. By the time I became Chair of the Bar’s Professionalism and Ethics Section (PRE) I had grown tired of the lack of civility in the legal profession. I proposed to the PRE Committee, which included Past-Chair Judge J. William Hart and Vice-Chair Dick Fields and other great lawyers on the committee, that we draft civility rules for the bench and bar. With the committee’s unanimous support, I research the civility rules of several states and proposed that we use those of the Western District of Michigan as a template. Dick Fields and I consulted with many judges and lawyers about the rules. We made any revisions we felt were necessary. Interestingly, not one person with whom we consulted said that civility rules were not needed.
In 2001, we submitted the rules to the Bench and Bar for adoption. I have attached my letter to the Bench and Bar stating the reasons why civility rules should be adopted in Idaho and asking for their support. New Chair Dick Fields and I then attended several Bar Commission resolution roadshows concerning the adoption of the rules. There was unanimous support for the rules by the Bench and the Bar. (As an aside, at one of the Commission meetings I did get into an interesting discussion with Judge Ron Wilper concerning the meaning of the phrase, “First, let’s kill all the lawyers.” (William Shakespeare’s Henry VI).)
The Civility Standards were adopted in 2001. I have attached the reasons why the rules were adopted here. Perhaps it is time, two decades later, to re-examine whether additional attention to these rules is necessary.
Very truly yours,
Thomas B. Dominick
Boise, Idaho
Mechanics’ Liens and the Priority Dilemma by John R. Jameson
by John R. Jameson
Idaho mechanics’ lien statutes reflect the public policy favoring protection of construction contractors, materialmen, and providers of certain professional services to receive renumeration for improvements made to real property. In essence, a right to a mechanics’ lien evens the playing field between property owners and persons improving the real property. Without the mechanics’ lien statutorily created security interests, builders, materialmen, and other contractors would only have judicial remedies of a breach of contract, or other operable cause of action, to obtain an enforceable right to collect monies owed. In the meantime, property owners would be able to profit from the property improvements without any consideration to the contractor performing the property improvements. The mechanics’ lien statutes change this dynamic by providing an immediate lien to secure payment for the work and services performed.
Application of Idaho’s mechanics’ liens statutes requires a thorough analysis of the law and the facts giving rise to a mechanics’ lien. Attorneys should be aware of several factors when dealing with mechanics’ liens. The actual work performed and the location thereof is important information when considering the property, or interest therein, subject to a potential mechanics’ lien. Furthermore, determining the priority of a mechanics’ lien is a dilemma that should be resolved to protect clients’ lien rights. Failure to address the issues of ownership of the property and the priority of a mechanics’ lien may result in substantial negative impacts on the interests of many of the parties involved in real estate transactions. This article will identify some of the considerations that attorneys should discuss with their clients, as well as offer practical steps that can be taken to perfect and protect the priority of a mechanic’s lien.
A Mechanics’ Lien is an Inchoate Lien
Mechanics’ liens “are preferred to any lien, mortgage, or other encumbrance, which may have attached subsequent to the time when the building, improvement or structure was commenced, work done, equipment, materials or fixtures were rented or leased, or materials or professional services were commenced to be furnished […].”[1]
Mechanics’ liens have priority over any lien, mortgage, or other encumbrance that attached subsequent to, or was unrecorded, or of which the lienholder had no notice as of (as applicable) the commencement of physical work; the date that materials were delivered, leased, or rented; or the date that “materials or professional services were commenced to be furnished.”[ii] The Idaho Supreme Court has consistently construed this statute to mean that each contractor, subcontractor or supplier has independent priority based upon when their specific work, services, or materials were supplied to the property or project.[iii]
For most persons with lien rights under this statute, the lienholder’s priority will relate back to the date that the contractor, subcontractor, or materialman physically commenced work or supplied materials to the property.[iv] A lien may encompass the entirety of the work performed under a single contract.[v] Therefore, pauses in work, waivers of lien claims, or even acceptance of partial payments for work performed may not affect the priority date for that lien claimant for work performed under a single contract. If work is performed or services are rendered under separate contracts, whether by the same or unrelated contractors, subcontractors or materialmen, the priority date for each contract and work conducted thereunder is determined independently of one another. [vi] The priority date for a resulting mechanics’ lien will be set by the commencement of work by each individual contractor, subcontractor, or materialman and not the execution of each provider’s contract for work to be performed.
Furthermore, the Idaho Supreme Court recently held that the priority of an engineer’s lien under I.C. § 45-501 relates back to the date “when the engineer commenced to furnish ‘any authorized, professional services’ under the contract regardless of where the services were rendered” and not to the date that physical work was commenced on the property at issue.[vii] By extension, this would also include work performed by a licensed surveyor in relation to the property.[viii] Therefore, certain mechanics’ lien rights may have priority over subsequent encumbrances, even if there has been no physical work commenced on the property. Thus an inchoate lien may have priority regardless of whether an actual claim of lien has been recorded in the county real property records.
Perfection of Lien
A person claiming a mechanics’ lien must file a claim of lien with the county recorder within ninety days after that claimant’s substantial completion of the labor or services or furnishing of materials.[ix] The Idaho Supreme Court has interpreted “completion” in this statute to mean “substantial completion” of the claimant’s work, and “trivial work done or materials furnished after the contract has been substantially completed will not extend the time in which a lien can be filed.”[x] Failure to properly record a claim of lien within this window may result in a total loss of lien rights against the property, though the claimant likely retains a personal action for collection of the debt.
The claim of lien is effective for six months after the claim of lien is filed, unless court proceedings are commenced to enforce the lien within that six-month period.[xi] If payment is made on the account or the lienholder extends credit with a set expiration date, the lien may be extended for an additional six months after the date of such payment or expiration of extension of credit so long as the payment or extension of credit is endorsed on the recorded claim of lien.[xii] The lien of a final judgment from a lien foreclosure action will be enforceable for ten years from the date of the judgment.[xiii]
Property Rights Subject to a Mechanics’ Lien
Idaho Code § 45-501 outlines a party’s right to lien real property for which labor, materials and/or services have been performed. The code section states in part, “[The contractor] has a lien upon the same for the work or labor done or professional services or materials furnished, whether done or furnished at the instance of the owner of the building or other improvement or his agent.”[xiv] Idaho Code § 45-505 defines the real property, including the “ownership” of the property less than fee simple, that is potentially subject to mechanics’ liens within the State of Idaho. The property interest subject to the lien only extends to the interest the person requesting the services, work, or materials has in the land.[xv] For example, if the person requesting such services, work, or materials only holds a leasehold interest, the lien will only attach to the leasehold interest.[xvi]
There are instances where a less-than-fee interest holder could potentially be considered an agent of the owner and bind the fee interest to mechanics’ liens. In such instances, the property owner must in some manner indicate that the agent is to act for him, and the agent must act or agree to act on his behalf and subject to his control.[xvii] However, merely acting in concert with one another, without a right of control, does not give rise to an agency relationship.[xviii] In most matters concerning the creation of an agency relationship, whether such relationship exists is a question of fact to be judicially determined.[xix]
The claimant has the right to lien all the “land upon which or in connection with which” the services were rendered, or the building, improvement, or structure is constructed, plus a “convenient space about the same” if the person that caused the services to be rendered or work to be performed also owns the adjacent land.[xx] “What area of land is subject to the lien in a given case largely depends upon the character of the improvement.”[xxi] “The question is not so much as to the amount of land required for the area to be occupied by the [improvement], but rather as to the amount of land to be improved and benefitted by the creation and use of the [improvement].”[xxii] “[T]he amount of land necessary for the convenient use and occupation of the property to be sold under the terms and conditions of the lien and judgment” must be determined by the court decreeing foreclosure.[xxiii]
Tenancy in Relation to Mechanics’ Liens
Real property rights in Idaho consist of the proverbial “bundle of sticks” taught during the first year of law school. One of the lesser explored or considered “sticks” is the property rights belonging to a tenant or lessee of real property. As a general rule, lessees hold a property interest less than that of property owner’s fee interest. This leasehold interest, as it is commonly referred, is limited in scope and duration. It also generally prohibits lessees from transferring or affecting the freehold estate possessed by the property’s vested owner.
One area where this general rule does not automatically apply is when tenant causes certain improvements to be made to the real property. The common law rule is that contractors “cannot recover for improvements made to a landlord’s property absent an agreement to reimburse ….”[xxiv] However, when the improvements and/or repairs are made “beyond what mere tenants typically make to a real property,” such as electrical improvements and tree removal, a fee owner cannot generally avail themselves of such improvements without some type of restitution to the tenant upon the termination of the tenancy.[xxv] Such an instance begs the question of whether a contractor, material supplier, and/or a professional service provider can encumber a landlord’s interest in the property should a tenant fail to pay for the improvements.
"Such an instance begs the question of whether a contractor, material supplier, and/or a professional service provider can encumber a landlord’s interest in the property should a tenant fail to pay for the improvements."
The facts of Tri-Circle v. Brugger Corp are instructive in determining an agency relationship in an owner-tenant context. That case concerned a farmer landlord tenant arrangement, in which the tenant was granted express authority to purchase irrigation materials and retain workers to perform certain repairs to the irrigation system. Subsequent to the authorized repairs being completed, which were paid for by the landlord, the tenant proceeded to charge additional expenses to the landlord’s account for further irrigation upkeep. At trial, there was no evidence presented that demonstrated the third-party vendor should have understood the charges incurred by the tenant were for irrigation start-up costs only, and the tenant was therefore cloaked under express, implied, and apparent authority to continue to charge the account for irrigation system materials and repairs.[xxvi]
Although Tri-Circle did not involve an issue of mechanics’ liens being charged against the owner’s real property, Idaho Courts have directly defined which acts or implications would give rise to a tenant being treated as an agent for purposes of mechanics’ lien attachments.
A tenant or lessee is not generally considered the agent of the lessor within the interpretation of the mechanics’ lien law merely by virtue of the relationship of landlord and tenant, and a tenant or lessee cannot subject the interest of his landlord to a mechanics’ lien by reason of the tenant’s contract with a materialman or laborer, unless the owner does some act in ratification of, or consent to the work done and the furnishing of the material or labor.[xxvii]
Subsequent Idaho case law clarifies that “consent for certain repairs specified in the lease to be made by the lessee was not sufficient to extend that materialman’s lien to the lessor’s interest.”[xxviii] “The estate or property of a lessor is not subject to a mechanics’ lien for improvements contracted for by his lessee unless the lessor has made him his agent or otherwise conferred the requisite authority on him, or ratified his acts, or is estopped to deny the validity of the lien.”[xxix]
In Idaho Lumber, a property lessee contracted with Idaho Lumber to remodel a building and construct a parking lot on the property. During construction on the property, the lessee made unilateral changes to the construction plans. Although the property owner visited the site during the construction, the facts showed that the lessee had complete control over the work performed on the property. Lessee subsequently defaulted on both the construction contract and the property lease. The contractor filed a mechanics’ lien against the property and sued the property owner to foreclose on the lien, amongst other claims. The court ultimately held that the “authorization” given by the property owner for the property alterations really amounted only to consent to have the lessee expend money on the property remodeling efforts and was therefore deemed insufficient to support a lien on the fee interest.[xxx]
If the landlord maintains control over property improvements requested by a tenant, Idaho Courts have deemed the tenant to be the agent of the landlord. In such a limited instance, the owner’s fee interest in the property may be subject to the lien.[xxxi] However, merely consenting to a tenant conducting the property improvements is generally not considered sufficient control to subject the fee interest to such a mechanics’ lien.[xxxii] As an example, many commercial leases will contain terms allowing for tenant improvements to the property, but only after obtaining landlord approval of the plans. This hypothetical is contrary to the facts of Idaho Lumber in that the landlord still holds oversight and approval rights as opposed to merely authorizing the tenant to construct the improvements.
Whether a tenant’s property improvements subject the property to a lien against the owner’s fee interest is a highly fact-specific analysis. The facts must be analyzed in every instance whether tenant improvements are being, or are contemplated to be, performed on the property. Items to consider during the analysis include, but are not limited to, the lease agreement, indications of actual control by the landlord, and/or tenant reimbursement terms.
Lender Protections Against Inchoate Mechanic’s Liens
Idaho does not have any statutory protections for the benefit of mortgagees or bona fide purchasers against valid, prior mechanic’s liens other than notice of the lien through a title search. However, there are still a few methods to mitigate mechanic’s lien risk in Idaho.
Lien Waivers and Subordinations
Express waivers of mechanics’ lien rights are valid and enforceable in Idaho so long as they are supported by adequate consideration.[xxxiii] “[W]here a lien waiver is not incorporated as part of a more comprehensive agreement, the lien waiver must be supported by independent valuable consideration.”[xxxiv] For example, when there is work performed outside the scope of the construction contract by a sub-contractor, there will likely need to be additional consideration to support a waiver from the subcontractor.[xxxv]
Idaho does not have statutory forms of or requirements for mechanics’ lien waivers, and waivers are customarily drafted and provided by contractors. While there is no required language, the intent to waive must be clear: “In order to establish a waiver, the intention to waive lien rights must clearly appear, and a waiver of the lien will not be presumed or implied, contrary to the intention of the party whose rights would be injuriously affected thereby.”[xxxvi] Lien waiver and subordination agreements must be so unambiguous to evidence the parties’ intent to waive, alter and/or subordinate the effective priority date of the subordination.[xxxvii]
Express subordinations of mechanic’s and materialmen’s lien rights to later-recorded security instruments are also enforceable in Idaho.[xxxviii] The subordination agreement will only establish priority as between the parties to the agreement and does not waive the subordinating party’s right to lien the property. Regardless, these agreements can be a useful tool to insure the relative priority of a security instrument in Idaho.
"The facts must be analyzed in every instance whether tenant improvements are being, or are contemplated to be, performed on the property."
Posting a Bond
If a mechanic’s or materialman’s claim of lien is recorded against real property, I.C. § 45-518 provides an expedited procedure for release of the lien by posting a bond with a court of competent jurisdiction. While a party responsible for payment may occasionally be reluctant to use this process for fear of admitting responsibility for payment, Idaho law is well established on this point: “the lien release bond is merely meant to act as substitute security for the real property and does not otherwise affect the rights of the interested parties.”[xxxix]
Title Insurance
The ability to ascertain the relative lien priority is an important component for a title insurance company in underwriting the issuance of a title policy for a construction loan. Both the ALTA 2006 and 2021 loan policies may provide coverage for mechanics’ lien risks due to lack of priority of the insured lender’s mortgage or deed of trust. Coverage of mechanics’ lien risks may also be provided through particular endorsements to the title policy. Due to the potential liability of insuring a lender’s priority, even in known sitiautions where it may not exist, title insurance companies will generally take great care in underwriting mechanics’ lien risks.
Conclusion
In the context of mechanic’s liens, legal representation of property owners, contractors or lenders mandates a highly factual, specific analysis in determining whether any work performed on the property gives rise to mechanic’s liens. Unlike many property encumbrances, mechanics’ liens are inchoate liens, which dictates a duty to analyze when and if a lien attaches. Further, attorneys should consider whether non-owner parties have caused any improvements to the property, which can potentially encumber the fee owner’s interest. As for preparing mechanic’s lien filings on behalf of contractor clients, strict compliance is required. Practitioners should be well versed in the nuances of I.C. § 45-501, et seq. before commencing representation concerning the perfection, court foreclosure actions, and lien priority rights.
Note: Nothing contained in this article is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This article is intended for educational and informational purposes only.
John R. Jameson
John R. Jameson has spent his legal career specializing in real property matters. Currently, John is Underwriting Counsel for First American Title assigned to Idaho, Montana and Oregon. John is an active member of the Idaho State Bar, serving on the Lawyer Assistance Program Committee, Chairman of the Unauthorized Practice of Law Committee, and is the Secretary/Treasurer of the Real Property Section. John is also a 2023 graduate of the Idaho Academy of Leadership for Lawyers. In his spare time, John enjoys running, camping, fishing, and anything that gets him outside.
[1] Idaho Code § 45-506.
[ii] Id.
[iii] See Ultrawall, Inc. v. Washington Mutual Bank, FSB, 135 Idaho 832, 25 P.3d 855 (2001) (Emphasis added); Pacific States Sav. & Loan & Bldg. Co. v. Dubois, 11 Idaho 319, 83 P. 513 (1905).
[iv] See Credit Suisse AG v. Teufel Nursery, Inc., 156 Idaho 189, 199, 321 P.3d 739, 749 (2014), citing Terra-West, Inc. v. Idaho Mut. Trust, LLC 150 Idaho 393, 400, 247 P.3d 620, 627 (2010).
[v] Terra-West, Inc. 150 Idaho at 400, 247 P.3d at 627.
[vi] Credit Suisse, 156 Idaho at 197, 321 P.3d at 747.
[vii] Hap Taylor & Sons, Inc. v. Summerwind Partners, LLC, 157 Idaho 600, 607, 338 P.3d 1204, 1211 (2014).
[viii] See I.C. § 45-501.
[ix] I.C. § 45-507.
[x] Baker v. Boren, 129 Idaho 885, 895, 934 P.2d 951, 961 (1997).
[xi] I.C. § 45-510(1).
[xii] Id.
[xiii] Id; See also I.C. § 10-1111.
[xiv] I.C. § 45-501 (Emphasis added).
[xv] I.C. § 45-505.
[xvi] Nelson Bennett Co. v. Twin Falls Land & Water Co., 14 Idaho 5, 17-18, 93 P. 789, 792 (1908).
[xvii] Herbst v. Bothof Dairies, 110 Idaho 971, 973, 719 P.2d 1231,1233 (1986).
[xviii] Id. at 736, 366 P.3d at 1096.
[xix] John Scowcroft & Sons Co. v. Roselle, 77 Idaho 142, 146, 289 P.2d 621, 623 (1955).
[xx] Id.
[xxi] Durfee v. Parker, 90 Idaho 118, 123, 410 P.2d 962, 964 (1965).
[xxii] Id.
[xxiii] Robertson v. Moore, 10 Idaho 115, 77 P. 218 (1904), overruled on other grounds by Dover Lumber Co. v. Case, 31 Idaho 276, 170 P. 108 (1918).
[xxiv] Asher v. McMillan, 169 Idaho 701, 706, 503 P.3d 172, 177 (2021).
[xxv] Id. at 708, 503 P.3d at 179.
[xxvi] Tri-Circle, 121 Idaho at 954, 829 P.2d at 544.
[xxvii] Bunt v. Roberts, 76 Idaho at 161, 279 P.2d at 630 (Emphasis added).
[xxviii] Idaho Lumber, 109 Idaho at 742, 710 P.2d at 652.
[xxix] Id. at 743, 710 P.2d at 653.
[xxx] Id.
[xxxi] Bunt v. Roberts, 76 Idaho 158, 161, 279 P.2d 629, 630 (1955).
[xxxii] Idaho Lumber v. Buck, 109 Idaho 737, 742, 710 P.2d 647, 652 (1985).
[xxxiii] Pierson v. Sewell, 97 Idaho 38, 42-43, 539 P.2d 590, 594-95 (1975).
[xxxiv] SI Constr., LLC v. Ridge at Black Rock Bay, Inc., 2011 Ida. Dist. LEXIS 19, *23.
[xxxv] See eg. G.R. SPonaugle &Sons, Inc. v. McKnight Construction Co. 304 A.2d 339, 345 (Del. Sup. Ct. 1973).
[xxxvi] Smith v. Faris-Kesl Const. Co., 27 Idaho 407, 150 P. 25, 32 (1915).
[xxxvii] See e.g. In Re Tamarack Resort foreclosure and Related Proceedings, Valley County Case No. CV-08-114C, pp. 12 (ID 4th Dist., 2009).
[xxxviii] See, e.g., Am. Bank v. Wadsworth Golf Constr. Co. of the Southwest, 155 Idaho 186, 307 P.3d 1212 (2013).
[xxxix] Wadsworth Golf, 155 Idaho at 192, 307 P.3d at 1218.
Changes In The 2021 ALTA Standard Form Title Insurance Policies by S. Craig Adams
by S. Craig Adams
On July 1, 2021, the American Land Title Association (“ALTA”) formally adopted substantial changes to its standard title insurance policy forms.[i] On July 1, 2021, it published these new forms for official use.[ii] ALTA is the national trade association representing the title insurance industry.[iii] One of its core functions is to develop and publish through its Title Insurance Forms Committee standard title insurance forms that title insurers and settlement providers across the United States can use.[iv]
Foremost of its standard forms are its uniform policies of title insurance.[v] First published in 1970, ALTA’s policies of title insurance protect the ownership of real property in an Owner’s Policy and the money lent to acquire or improve such real property in a Loan Policy.[vi] ALTA periodically revises its forms to “reflect changes in the marketplace brought about by evolving business practices, expectations of insureds, laws, regulations and legal decisions.”[vii] Since their first publication, ALTA has formally revised its standard title insurance policies only a handful of times. Before the 2021 revisions, ALTA’s most recent changes were completed in 2006 when it rewrote entirely all its standard forms.[viii]
The main drivers of ALTA’s 2021 revisions to its standard Owner’s and Loan title policies were the creation of the Consumer Finance Protection Bureau under the Dodd-Frank Wall Street Reform and Consumer Protection Act[ix]; the adoption in a significant number of jurisdictions of remote online notarization practices[x]; the legislative focus in a growing number of states addressing publicly recorded historical documents containing illegal discriminatory restrictive covenants[xi]; and the United States Supreme Court’s decision in McGirt v. Oklahoma[xii], in which the Court confirmed that the boundaries of the reservation of the Muscogee (Creek) Nation had never been disestablished by the United States Congress and remains in existence. The McGirt decision is significant because it raises broad questions about tribal reservation disestablishment jurisprudence nationwide and about governmental and regulatory jurisdiction of historic tribal lands.
ALTA’s 2021 Title Policies
Modernizing Coverage by Clarifying Certain Covered Risks and Adding Entirely New Covered Risks to the Policies
ALTA changed every section of its Loan[xiii] and Owner’s[xiv] title insurance policies with its 2021 revisions. Throughout, ALTA prioritized making changes that clarify what they are intended to cover, by adding new definitions and modifying others, and what they are not intended to cover by modifying or adding to the Covered Risks, the Exclusions, the Conditions, and Schedules A and B of the policies.
Both the new Owner’s Policy and Loan Policy begin with a new introductory clause to acknowledge the use of electronic documents and electrically obtained and acknowledged signatures, and to clarify that the insurance company will not deny liability solely because they were issued or obtained electronically.[xv] [xvi]
Covered Risk 2: Owner’s and Loan Policies
The 2021 ALTA Policies Add New Language Dealing with Remote Online Notarizations
Covered Risk 2 in both the Loan Policies[xvii] and Owner’s [xviii] is modernized by express mention of remote online notarization and repudiation of an electronic signature as examples of title defects that can cause a covered loss under the policy. Additionally, survey coverage under Covered Risk 2 has been enhanced by expressly including that any boundary line overlaps that appear on a survey and which are not otherwise excepted are title defects that can trigger a covered loss under the policy.[xix]
Covered Risks 5, 6, 7 and 8: Owner’s and Loan Policies
The ALTA 2021 Policies Add New Defined Terms “Enforcement Notice” and “PACA-PSA Trust” and Revise Defined Term “Public Records”
Both the Owner’s and Loan Policies include a new defined term “PACA-PSA Trust”, and a corresponding new Covered Risk 8 that insures against loss arising from the enforcement of a PACA-PSA Trust to the extent of the enforcement described in an “Enforcement Notice” and recorded in the “Public Records”.[xx] [xxi]
The Perishable Agricultural Commodities Act[xxii] (“PACA”), and the Packers and Stockyards Act[xxiii] (“PSA”) (together, the “Acts”) each create a floating, non-segregated trust for the benefit of the unpaid producers, suppliers, and sellers of the products defined in the Acts (e.g., fresh and frozen fruits and vegetables, in the case of PACA; poultry products, livestock, dairy, and meat products, in the case of PSA) against the assets of buyers or dealers, including assets acquired with proceeds derived from the sale of covered products. These trusts can exist as an inchoate (i.e., unrecorded) claim against the business operations of a buyer or dealer that can create a defect in the title to real property.
"Since their first publication, ALTA has formally revised its standard title insurance policies only a handful of times."
The Owner’s and Loan Policies include a new defined term “Enforcement Notice” and revise the defined term “Public Records.” These are important new terms for Covered Risks 5, 6, 7, and 8 in both.
“Enforcement Notice” is defined as a “document recorded in the Public Records that describes any part of the Land and . . . is issued by a governmental agency that identifies a violation or enforcement of a law, ordinance, permit, or governmental regulation; is issued by a holder of the power of eminent domain or a governmental agency that identifies the exercise of a governmental power; or asserts a right to enforce a PACA-PSA Trust.”[xxiv] [xxv]
The revised definition of “Public Records” distinguishes between those public records that are intended to be used for limited purpose in title insurance policies and other governmental records that are not intended as such, and which are construed generally as being outside of the policy’s intended scope.[xxvi] [xxvii] The newly defined “Enforcement Notice”, together with the revised “Public Records” definition, represent a much-needed clarification as to what form of notice causes a covered loss, and where such notice must be recorded to trigger coverage unless excepted from coverage in Schedule B.
Covered Risk 10: Loan Policy
The 2021 ALTA Loan Policy Clarifies Those Components of a Loan That a Title Policy Covers
Covered Risk 10 in the new Loan Policy was overhauled to clarify the specific components of Indebtedness that benefit from priority coverage for the Insured Mortgage.[xxviii]
The 2006 Loan Policy addressed the lack of priority of the Insured Mortgage lien against other liens on the Title but, as with all of the Covered Risks, its language was subject to Exclusion 3(d) for “[d]efects, liens, encumbrances, adverse claims, or other matters . . . (d) attaching or created subsequent to Date of Policy . . . .”[xxix] This left open the question of whether principal disbursed subsequent to Date of Policy (other than construction loan advances addressed by Covered Risk 11(a)) were actually included as part of the priority coverage under Covered Risk 10. The ALTA Forms Committee wanted lender customers to understand this question and seek an endorsement, such as the ALTA 14 (Future Advance – Priority) or ALTA 14.1 (Future Advance – Knowledge), whichever is most appropriate in light of the terms of the subject loan and applicable state law, to be confident in the scope of the priority coverage provided by Covered Risk 10.[xxx] The Forms Committee reworded the 2021 Loan Policy to resolve the uncertainty by driving lender Insureds to seek an appropriate endorsement whenever a loan that is not a construction loan contemplates future advances of principal.[xxxi]
Covered Risk 13: Loan Policy / Covered Risk 9: Owner’s Policy
The 2021 ALTA Policies Improve Coverage for Issues Related to Creditors’ Rights Against Real Property
Covered Risk 13 in the Loan Policy, and Covered Risk 9 in the Owner’s Policy, sometimes referred to as “back-chain creditors’ rights coverage,” affords protection to the Insured against the risk that a transaction prior to the one for which the Loan Policy or Owner’s Policy is being issued is challenged on the basis that it constituted a fraudulent conveyance, fraudulent transfer, or a preferential transfer, under federal bankruptcy, state insolvency, or similar state or federal creditors’ rights laws.[xxxii]
Section 550(a) of the Bankruptcy Code authorizes an alternative remedy in allowing the bankruptcy trustee to “recover, for the benefit of the estate, the property transferred, or, if the court so orders, the value of such property . . . .”[xxxiii] The new Covered Risk improves back-chain creditors’ rights coverage by expressly stating that protection against loss resulting from “the effect of a court order providing an alternative remedy” now applies to both subsections of this Covered Risk.[xxxiv] [xxxv]
Additionally, the back-chain creditors’ rights coverage has been updated to expressly address the risk of a challenge to a prior transaction based on it being voidable under the Uniform Voidable Transactions Act. The National Conference of Commissioners changed the Uniform Fraudulent Transfer Act to the Uniform Voidable Transactions Act (“UVTA”) in 2014[xxxvi] and numerous states have enacted the UVTA as part of applicable state creditors’ rights law.[xxxvii] The 2021 revision modernizes coverage by expressly referencing the UVTA within this Covered Risk.[xxxviii]
New Exclusions and Clarity on Certain Others from Coverage
Two new Exclusions have been added with the 2021 Owner’s and Loan Policy revisions. The remainder of the revisions to this section are intended to keep the Exclusions internally consistent with modifications made to the corresponding Covered Risks and Conditions sections of the policies.
First is the governmental police power exclusion (Exclusion 1.b). The 2021 revision adds the words “forfeiture,” “regulatory,” and “national security” power to the list to clarify that these are intended to be excluded from coverage and are within the scope of Exclusion 1.b.[xxxix] Note, however, that a concluding sentence in Exclusion 1 of the 2021 policies makes clear that the Exclusion “does not modify or limit the coverage provided under Covered Risk 5 or 6”.[xl] So, as was the case with Exclusion 1 of the 2006 policies, the 2021 policies do insure against loss or damage arising from the enforcement of a governmental forfeiture, police, regulatory, or national security power to the extent of the enforcement described in an “Enforcement Notice” that, as defined, is recorded in the “Public Records,” and is not excepted to in Schedule B.[xli]
Second is the ‘failure to pay value’ exclusion (Exclusion 3.e.). It has been modified to make clear that “value,” for purposes of this exclusion, means “consideration sufficient to qualify the Insured named in Schedule A as a bona fide purchaser or encumbrancer”—the word ‘encumbrancer’ being unique to the Loan Policy—to be entitled to the protection of state recording statutes.[xlii] The clarification should bring comfort to those who might have confused “value” in this Exclusion 3.e. context for “fair value,” “reasonably equivalent value,” or “fair market value”.[xliii]
Exclusion 4 of the Owner’s Policy and Exclusion 6 of the Loan Policy are the creditors’ rights exclusion. As the counterpart to Covered Risk 9 of the Owner’s Policy and Covered Risk 13 of the Loan Policy, each policy now expressly excludes from coverage, in addition to fraudulent conveyances and fraudulent transfers, loss that arises out of a voidable transfer claim under the UVTA as well as voidable preference claims to the extent the instrument of transfer vesting the Title as shown in Schedule A. In the Loan Policy context, this phrase reads “to the extent the Insured Mortgage is not a transfer made as a contemporaneous exchange for new value . . . .”[xliv] These additions modernize and add clarity to each policy.[xlv]
Exclusion 7 of the Loan Policy and Exclusion 5 of the Owner’s Policy contain a new exclusion for liability by reason of any claim arising from a PACA-PSA Trust. Note, however, that the exclusion expressly states that it does not “modify or limit the coverage provided under the new Covered Risk 8”[xlvi], which insures against loss for “an enforcement of a PACA-PSA Trust, but only to the extent of the enforcement described in an Enforcement Notice” that has been recorded in the “Public Records”.[xlvii]
Exclusion 9 of the Loan Policy and Exclusion 7 of the Owner’s Policy contain a new exclusion for loss arising from “[a]ny discrepancy in the quantity of the area, square footage, or acreage of the Land or of any improvement to the Land.”[xlviii] Although the title insurance policy has never been intended to provide coverage for these issues, this exclusion was added to eliminate the need to add a special exception to Schedule B of the policy whenever the record legal description of the Land includes references to the subject parcel’s quantity of area, square footage, or acreage and the Insured prefers that the legal description in Schedule A of the policy exactly match the record legal description. This new exclusion eliminates the confusion.[xlix]
Modernize Language Relating to the Policies’ Schedule B Exceptions from Coverage
Each policy’s ‘Schedule B – Exceptions from Coverage’ now begins with a preamble that addresses globally any exceptions to restrictive covenants shown in the policy that may contain unenforceable discriminatory provisions. The added language is intended to make clear that when the policy includes an exception for a restrictive covenant, it does not perpetuate or republish any illegal provisions found therein, but still preserves the exception to coverage for those portions of the covenant that are legal and enforceable.[l]
Likewise, the policies now contain a model exception immediately preceding the list of Schedule B exceptions that clarifies that the policy does not cover loss due to the terms and conditions of any lease or easement that is identified as an insured interest in Schedule A of the title policy.[li] Like the Preamble discussion above, this model exception eliminates the need for a specific numbered exception in Schedule B as to the terms and conditions of an easement or lease that is shown as part of the interest being insured in Schedule A of the title policy.[lii]
Eight New Defined Terms and Certain Others Revised
There are eight new Defined Terms in Condition 1. These are Affiliate, Consumer Protection Law, Discriminatory Covenant, Enforcement Notice, Government Mortgage Agency or Instrumentality, Obligor, PACA-PSA Trust, and State.[liii] Of note, Affiliate, is as an Entity “that is wholly owned by the Insured; that wholly owns the Insured; or if that Entity and the Insured are both wholly owned by the same person or entity.”[liv] State is “[t]he state or commonwealth of the United States within whose exterior boundaries the Land is located. The term “State” also includes the District of Columbia, the Commonwealth of Puerto Rico, the U.S. Virgin Islands, and Guam.”[lv]
There are also revised Defined Terms in Condition 1. Of note, Indebtedness expressly includes “advances made for insurance premiums” [Condition 1.i.i.(g)]; “real estate taxes and assessments imposed by a governmental taxing authority” [Condition 1.i.i.(h)(1)]; and “regular, periodic assessments by a property owners’ association” [Condition 1.i.i.(h)(2)].[lvi]
The term Insured in the Owner’s Policy, clarifies with added language that a conveyance from the named Insured to any one of the following qualifies the grantee as an Insured under the policy, including an Affiliate: “A trustee or beneficiary of a trust” [Condition 1.g.i.(e)(2)]; “a spouse who receives title [in] a dissolution of marriage” [Condition 1.g.i.(e)(3)]; “a transferee by a transfer effective on the death of an Insured as authorized by law” [Condition 1.g.i.(e)(4)]; or “another Insured named in Item 1 of Schedule A” [Condition 1.g.i.(e)(5)].[lvii]
The term “Insured” in the Loan Policy clarifies with added language that the Insured is a person, “other than an Obligor, . . . [who] owns the Indebtedness, the Title, or an estate or interest in the Land . . . but only to the extent [the person] either . . . owns the Indebtedness for its own account or as a trustee or other fiduciary or . . . owns the Title after acquiring the Indebtedness.”[lviii] The definition further clarifies that a conveyance from the named Insured to any one of the below qualifies the grantee as an Insured under the policy.[lix]
Note that both the revised Owner’s Policy and Loan policy have removed the requirement that the deed or conveyance from the Insured to an Affiliate be “delivered without payment of actual valuable consideration” to qualify the grantee Affiliate within the policy’s definition of “Insured”.[lx]
The term “Public Records” in the Owner’s Policy and Loan Policy has been modified to specifically enumerate the filing systems that are intended to be considered Public Records for the purpose of title insurance and to distinguish other governmental records that are not intended to qualify as Public Records within the scope of the title insurance contract. These mean “[t]the recording or filing system established under State statutes . . . under which a document must be recorded . . . to impart constructive notice [to a purchaser for value without knowledge] of matters relating to the Title . . . .”[lxi] Expressly, Public Records do not include “any other recording or filing system, including any pertaining to environmental remediation or protection, planning, permitting, zoning, licensing, building, health, public safety, or national security matters.”[lxii]
Condition 8 in each policy now contains a revised preamble emphasizing that the title policy is a “contract of indemnity against actual monetary loss or damage” by reason of matters insured against and “is not an abstract of the Title, report on the condition of the Title, legal opinion, opinion of the Title, or other representation of the status of the Title.”[lxiii]
An added term in Condition 8.a. ii. states that a “fair market value of the Title” [bolding added] standard will be used to calculate compensable loss or damage based upon diminution in value, as compared to the open-ended term “value of the Title”, on which the 2006 title policies relied.[lxiv] A new Condition 8.b., addressing the date as of which loss or damage will be calculated, states that “the fair market value of the Title in Condition 8.a. ii. is calculated using the date the Insured discovers the defect, lien, encumbrance, adverse claim, or other matter insured against by this policy.”[lxv]
However, as provided by new Condition 8.c., “[i]f, at the Date of Policy, the Title to all of the Land is void by reason of a matter insured against by th[e] policy, then the Insured Claimant may . . . elect to use the Date of Policy as the date for calculating the fair market value of the Title . . . .”[lxvi] As provided by Condition 8.d.(i), if the Insurer exercises its Condition 5.b. right to cure the claimed defect but is unsuccessful, then the Amount of Insurance increases by 15% (as compared to 10% in the 2006 Owner’s Policy).[lxvii] Also, Condition 8.d.ii. provides the Insured two additional alternative dates from which to choose as the “as of” date for calculating the amount of loss or damage when the insurer has attempted and been unsuccessful in curing the claimed defect. These are: (1) the date the settlement, action, proceeding, or other act described in Condition 5.b. is concluded; or (2) the date the insurer received the Insured’s notice of claim.[lxviii]
Condition 8 of the Loan Policy includes the same “fair market value of the Title” [bolding added] standard as the revised Owner’s Policy, to add clarity to what is meant by “value of the Title” in Condition 8.a.iii., for purposes of calculating compensable loss or damage based upon diminution in value.[lxix] New Condition 8.b. addresses the date as of which loss or damage will be calculated for an Insured lender and states that the “[f]air market value of the Title in Condition 8.a.iii. is calculated using either “the date [title is acquired] as a result of a foreclosure or deed in lieu of foreclosure” or “the date the lien of the Insured Mortgage . . . is extinguished or rendered unenforceable by reason of a matter insured against by this policy.”[lxx]
As with the revised Owner’s Policy, the 2021 Loan Policy, in Condition 8.c., also provides the Insured lender with two added benefits if the insurer exercises its right to cure the claimed defect but is unsuccessful. They are that the Amount of Insurance will be increased by 15% (as compared to 10% in the 2006 Loan Policy).[lxxi] And also, that the Insured may elect, as an alternative to the dates set forth in Condition 8.b. [for calculating the fair market value of the Title in Condition 8.a.iii.], to use either the “date the settlement, action, proceeding, or other [curative] act . . . is concluded, or the date the notice of claim required by Condition 3 is received [by the Insurer] . . . .”[lxxii]
Additionally, there are several miscellaneous conditions added. First, Condition 10 of the Loan policy has been retitled as “Reduction or Termination of Insurance”. A new Condition 10.b provides that, when the Insured acquires the Title through foreclosure or a deed in lieu of foreclosure, the Amount of Insurance is not reduced by the amount that is credited against the Indebtedness.[lxxiii]
Revised Condition 15 in the Loan Policy and Condition 16 in the Owner’s Policy provide that the “State law of the State where the Land is located, or to the extent it controls, federal law, will determine the validity of claims against the Title and the interpretation and enforcement of the terms of the policy, without regard to conflicts of law principles to determine the applicable law.”[lxxiv]
Next, Condition 17 of the Loan Policy and Condition 18 of the Owner’s Policy prohibit class action proceedings pertaining to “[a]ll claims and disputes arising out of or relating to this policy, including any service or other matter in connection with issuing this policy, any breach of a policy provision, or any other claim or dispute arising out of or relating to the transaction giving rise to this policy. . . .”[lxxv]
Lastly, Condition 18 of the Loan Policy and Condition 19 of the Owner’s Policy includes a revised Arbitration provision as the last numbered Condition that is bracketed to signify that each title insurer has the option to include or delete it.[lxxvi] Deleting the bracketed provision from the title insurer’s typeset form obviates the need for an endorsement to accomplish the same result in transaction-specific contexts.
Copies of redlined comparisons of the 2006 ALTA Policies against the 2021 ALTA Policies, and a clean blackline version of each, as well as comprehensive comparison charts of both policies, can be found at https://www.alta.org/policies-and-standards/policy-forms/.
Note: Nothing contained in this article is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. This article is intended for educational and informational purposes only.
S. Craig Adams
S. Craig Adams is underwriting counsel for First American Title Insurance Company in Oregon, Idaho, and Montana. He has extensive knowledge in dealing with both residential and commercial real estate transactions. Prior to joining First American, Craig practiced real estate law with a firm in Boise, which he greatly enjoyed. Craig received his law degree from the University of Denver Sturm College of Law, graduating magna cum laude, and a Master of Science in commercial real estate and construction management from the University of Denver Daniels College of Business. He received his Bachelor of Arts degree from the University of California Santa Barbara. Craig is an active member of the Idaho State Bar, currently serving as the Real Property Section’s Vice Chair. He is also a member of the Colorado State Bar Association. An avid outdoorsman, Craig was an Outward Bound Instructor for six years and also served as a boat captain for three years in Glacier National Park. He can be contacted at (208) 339-5242 or scadams@firstam.com.
[i] ALTA Board Approves 2021 Policy Forms, June 1, 2021, available at https://www.alta.org/news-and-publications/news/20210601-ALTA-Board-Approves-2021-Policy-Forms) (last checked 12-7-23).
[ii] Id.
[iii] See generally, About the American Land Title Association, available at https://www.alta.org/about/ (last checked 12-7-23).
[iv] Policy Forms, available at https://www.alta.org/policies-and-standards/policy-forms/ (last checked 12-7-23).
[v] TITLE INSURANCE, A COMPREHENSIVE OVERVIEW, American Land Title Association, page 4, available at https://www.alta.org/press/titleinsuranceoverview.pdf. (last checked 12-7-23).
[vi] TITLE NEWS, 2021 ALTA Policies and Commitment Open for Public Comment (October 2020), available at https://alta.org/news-and-publications/titlenews-magazine/2020/october_2020.pdf (last checked 12-7-23) a.
[vii] Id.
[viii] Id.
[ix] 12 U.S.C. §§ 5481-5603.
[x] See Remote Online Notarization State Survey, Mortgage Bankers Association, available at https://www.mba.org/advocacy-and-policy/residential-policy-issues/remote-online-notarization (last checked 12-7-23).
[xi] See e.g., Idaho Code §55-616; Utah Code Ann. § 57-21-6.1; CRS § 24-34-501; Cal Gov. Code §12956.2; Fla. Stat. Ann. §712.065; Tex. Prop. Code §202.004.
[xii] McGirt v. Oklahoma, 140 S. Ct. 2452; 591 U.S. ___ (Jul. 9, 2020).
[xiii] See ALTA Loan Policy 2021 v 01.00, effective 07-01-2021, available at https://www.alta.org/policies-and-standards/policy-forms/download.cfm?formID=602&type=word (last checked 12-7-23).
[xiv] See ALTA Owner’s Policy 2021 v. 01.00, effective 07-01-2021, available at https://www.alta.org/policies-and-standards/policy-forms/download.cfm?formID=603&type=word (last checked 12-7-23).
[xv] See Comparison Chart – Loan Policy 2021 against 2006, available at https://www.alta.org/policies-and-standards/policy-forms/downloadSub.cfm?formSubID=2156&type=pdf. (last checked 12-7-23).
[xvi] See Comparison Chart – Owner’s Policy 2021 against 2006, available at https://www.alta.org/policies-and-standards/policy-forms/downloadSub.cfm?formSubID=2157&type=pdf (last checked 12-7-23).
[xvii] See Endnote xiii.
[xviii] See Endnote xiv.
[xix] Id.
[xx] See Endnote xiii.
[xxi] See Endnote xiv.
[xxii] See generally 7 U.S.C. §§ 499a, et seq.
[xxiii] See generally 7 U.S.C. §§ 181, et seq.
[xxiv] See Endnote xiii.
[xxv] See Endnote xiv.
[xxvi] See Endnote xv.
[xxvii] Id.
[xxviii] Id.
[xxix] See ALTA Loan Policy 2006, decertified 12-31-22, available at https://www.alta.org/policies-and-standards/policy-forms/download.cfm?formID=156&type=word (last checked 01-03-24).
[xxx] See Endnote xv.
[xxxi] Id.
[xxxii] Id.
[xxxiii] 11 U.S.C. § 550 (a).
[xxxiv] See Endnote xv.
[xxxv] See Endnote xvi.
[xxxvi] See Act Summary, Voidable Transactions Act, Uniform Law Commission (“[T]he tile of the Act is now the ‘Uniform Voidable Transactions Act’ (UVTA).”), available at https://www.uniformlaws.org/committees/community-home?communitykey=64ee1ccc-a3ae-4a5e-a18f-a5ba8206bf49 (last checked 12-7-23).
[xxxvii] Id.
[xxxviii] See e.g., Endnote xv.
[xxxix] See e.g., Endnote xiii.
[xl] Id.
[xli] Id.
[xlii] Id.
[xliii] Id.
[xliv] Id.
[xlv] Id.
[xlvi] See Endnote xiii.
[xlvii] Id.
[xlviii] See e.g., Endnote xiii.
[xlix] Id.
[l] See e.g., Endnote xv.
[li] See e.g., Endnote xiv.
[lii] See e.g., Endnote xvi.
[liii] Id.
[liv] See e.g., Endnote xiv.
[lv] See e.g., Endnote xiii.
[lvi] Id.
[lvii] See Endnote xiv.
[lviii] See Endnote xiii.
[lix] Id.
[lx] See Id. Comments on Condition 1.j.1.(e).
[lxi] See e.g., Endnote xiii.
[lxii] Id.
[lxiii] See e.g., Endnote xvi.
[lxiv] Id.
[lxv] Id.
[lxvi] See Endnote xvi.
[lxvii] Id.
[lxviii] See Endnote xiv.
[lxix] See Endnote xiii.
[lxx]Id.
[lxxi] Id.
[lxxii] Id.
[lxxiii] See Endnote xiii.
[lxxiv] See e.g., Endnote xiv.
[lxxv] Id.
[lxxvi] Id.
Navigating the Idaho Eviction Process: A Guide for Attorneys Representing Landlords by Katelin E. Bartles
by Katelin E. Bartles
The Idaho eviction process is a unique and often confusing segment of landlord-tenant law. Attorneys who specialize in this field understand that Idaho’s eviction statutes are poorly written and terribly disorganized, often making it difficult to navigate the process correctly. This article provides the framework for attorneys representing landlords and outlines the different types of eviction proceedings in Idaho. With the help of this guide, your law office should be well-equipped to represent landlord clients effectively.
Idaho’s eviction code comprises several distinct categories, each with its own set of unique rules and procedures. The main types of evictions include those for non-payment of rent, failure to vacate following non-renewal of a lease term, lease violations, drug-related evictions, removal of manufactured homes from leased property, and forcible detainer cases.
Eviction for Non-Payment of Rent
The most common form of eviction is failure to pay rent. Non-payment evictions arise when a tenant fails to meet their financial obligations as stipulated in their lease agreement. These evictions can also be pursued if the non-payment violates an oral agreement, albeit such scenarios are much more difficult to prove in court. Idaho Code § 6-303(2) defines and discusses when eviction for non-payment is appropriate.
To initiate the eviction process, landlords must first serve the tenant with a three-day notice to pay or vacate. As one might assume, the notice states that the tenant has three days from the date of the notice delivery to either pay the rent owed or vacate the premises. Often judges may refer to said notice as a “three-day notice to quit,” a synonymous term that is popular with some practitioners. Proper delivery of the notice is crucial.
Idaho Code § 6-304, the first example of a horrendously written statute, provides guidance on how to effectuate service. Ideally, the notice should be personally delivered to the tenant and can be delivered by any adult, including the landlord. If personal delivery is not possible, the landlord may choose to post the notice on the property and provide an additional copy via standard mail. In my experience, it is best practice to advise your landlord client to also send a copy of the notice via text, as this is often the most common form of communication between landlords and tenants.
The three-day notice must include information about the consequences of a judgment being entered against the tenant. Three-day notices must include language stating that tenants will have 72 hours to remove their belongings following a judgment of eviction.[i] Commercial tenants and tenants with more than five acres of property are entitled to longer removal times post-judgment.[ii] Failure to include this language requires re-service to the tenant with proper notice, and as such restarts the three-day period to comply. This occurs even if an eviction action has already been filed.
If the tenant fails to vacate or make the required lease payment within the three-day period, as the landlord’s attorney you will need to file a complaint for an expedited eviction and corresponding summons. The complaint filed should include all necessary information as required by Idaho Code § 6-310. The summons issued is not a standard summons, as landlords are entitled to a hearing within twelve days of filing the complaint. As such, the format of the summons may vary depending on the judicial district and courthouse. In Ada County, for instance, the filing attorney should leave a blank space for the expedited hearing’s date and time, with the Court later filling in this information before returning the conformed copy. In accordance with Idaho Code § 6-310(2), the complaint and summons must be served at least five days before the hearing date.
Generally, the expedited hearing will focus solely on whether payment was made, or if the tenant vacated within the required three-day period. According to Idaho Code § 6-310(2), the scheduled hearing is the trial the landlord is entitled to. However, in practice judges will often reset the trial for a later but imminent date. In my experience, the hearing is best utilized as an opportunity to negotiate payment or a move out date between the parties. Some courts require the parties to attend mandatory mediation during the expedited hearing, a process that is highly beneficial to both parties involved.
Eviction for Failure to Vacate Following Non-Renewal of a Lease Term
Non-renewal evictions occur when a tenant remains in possession of a property after receiving proper notice that their lease term has ended. Idaho Code § 6-303(1) defines this type of eviction and discusses when eviction for non-renewal is appropriate.
The notice period for non-renewal is generally contingent upon the terms outlined in the written lease agreement. Each lease agreement is different and may specify different notice periods for non-renewal. However, to comply with Idaho Code § 55-307(3)(a), the notice period must occur at least 30 days before the lease term ends. Otherwise stated, notice of non-renewal must be delivered to a tenant at least 30 days before the lease term ends, but individual leases may contract for a notice period greater than 30 days. Delivery of the notice should be in writing and in accordance with the lease terms.[iii] In situations without a written lease agreement, a tenancy at will, Idaho Code § 55-208(1) necessitates at least one month’s notice of non-renewal. Abysmally written Idaho Code strikes again when it comes to delivery of the notice for a tenancy at will. Idaho Code § 55-208(1) states that service must be made, “in the manner prescribed by the code of civil procedure.”
You may be shocked to hear that the I.R.C.P. doesn’t specifically state how to deliver such notices, and that there are multiple rules governing service of papers. In practice, judges in Ada, Canyon, Owyhee, Gem, and Elmore Counties have generally ruled that service is proper if done in accordance with I.R.C.P. 5(b), which allows for personal delivery and mailing among other things. In my practice, I typically advise clients to serve in the same manner that a three-day notice to pay or vacate is served.
If the tenant refuses to vacate the property after the term expires and proper notice has been served, the landlord will need to initiate the standard eviction process, which follows the typical lawsuit procedure. After serving the complaint and standard summons, tenants have 21 days to file an answer. If the tenant fails to respond, you’ll need to file for default and default judgment on behalf of your client. In cases where the tenant does respond, you’ll want to move for summary judgment. This approach is often effective if the tenant does not have an ownership interest in the property they are leasing.[iv]
"Each lease agreement is different and may specify different notice periods for non-renewal."
Eviction for Lease Violations
When a tenant violates a provision of their lease agreement, landlords can pursue a lease violation eviction. Idaho Code § 6-303(3) defines this type of eviction and discusses when eviction for a lease violation is appropriate. In such cases, landlords must serve the tenant with a three-day notice as specified in Idaho Code 6-303(3), which requires the same type of service called for in notices for failure to pay rent as previously discussed. If the tenant fails to rectify the violation within the stipulated three-day period, and your client would like to proceed with eviction for the violation, you’ll need to follow the standard eviction process as is detailed in the non-renewal section of this article. Keep in mind that the lease agreement may specify a different process or remedy for lease violations. As such it is important to compare Idaho Code § 6-303(3) and the lease agreement to ensure the proper process is being followed. I encourage landlords to work with tenants on lease violation issues rather than jump to an eviction. Open communication is more cost effective for landlords and keeps Idaho families housed.
Eviction for Drug-Related Offenses
A less common eviction available to landlords occurs when their tenants commit drug-related offenses on the leased property. Idaho Code § 6-303(5) defines this type of eviction and discusses when eviction for a drug-related offense is appropriate. The expedited eviction process, as described in the non-payment section, is available for landlords whose tenants are engaged in the unlawful delivery, production, or use of a controlled substance on the leased property.[v] The delivery, production, or use must occur on the leased property, not elsewhere. Unfortunately, Idaho law does not provide judges a standard of proof on which to determine if a drug-related violation occurred. As such, the standard may vary depending on the courtroom and evidence provided by the landlord.
Eviction of a Manufactured Home from a Leased Lot
Evicting a tenant who owns a manufactured home located on rented lot involves adhering to the Idaho Manufactured Home Residency Act, found in Idaho Code § 55-2001 et seq. Although, when a tenant rents both the manufactured home and the lot it occupies, the eviction process aligns with non-payment, non-renewal, lease violation, or drug violation procedures, as applicable.
The eviction/removal of a manufactured home requires a 90-day notice, served in accordance with Idaho Code § 55-2020. Such code section mandates personal delivery or certified mailing with a return receipt. It’s essential to note that the Idaho Manufactured Home Residency Act isn’t applicable to recreational vehicles or travel trailers, so before initiating the eviction process, you’ll need to carefully research whether the act applies.[vi]
"Successfully navigating the Idaho eviction process requires not only legal expertise, but a strategic and compassionate approach."
Forcible Detainer Evictions
Forcible detainer, sometimes referred to as “squatting,” occurs when an individual unlawfully enters a property and refuses to vacate in violation of Idaho Code § 6-302. In other words, the person never had permission to occupy the property in the first place. In such situations, landlords should immediately file a forcible detainer complaint and summons against the unauthorized occupant. A hearing will then be scheduled within 72 hours of filing (excluding weekends and holidays), in accordance with Idaho Code 6-310(4).
What Happens if a Tenant Fails to Vacate Following an Eviction Judgment?
Following a judgment of eviction, tenants have 72 hours to vacate the property.[vii] If a tenant chooses not to leave after judgment is entered, you’ll need to file for and obtain a signed writ of restitution. As the attorney, you’ll need to deliver the signed writ to the county sheriff, who may execute it no earlier than three days after judgment was entered.[viii] Though not required by statute, most sheriff’s departments will provide tenants with 24-hour notice before removal. Remember, if the tenant is a commercial tenant or renting a property greater than five acres, they are entitled to extended time to vacate post judgment.[ix]
Can Landlords Collect Unpaid Rent and Court Costs via an Eviction Judgment?
The short answer is no, not on the eviction judgment alone. The standard eviction judgment for non-payment should list the amount of money owed to the landlord because of failure to pay rent and associated court costs. As such, non-payment eviction judgments do legally require the tenant make a payment to the landlord. However, the judgment itself lacks the authority to garnish wages, access a bank account, or employ other debt collection methods. To secure an enforceable money judgment, the landlord must initiate a separate legal proceeding.
Best Practices for Attorneys Handling Evictions for Landlords
Successfully navigating the Idaho eviction process requires not only legal expertise, but a strategic and compassionate approach. In this regard, attorneys should prioritize a few key practices for optimal results. First and foremost, effective communication with tenants is crucial. This can often lead to resolutions that benefit both parties. Mediation can play a significant role, serving as a valuable tool for dispute resolution.
Additionally, it’s important to consider the time frame for move-outs. Encouraging landlords to provide tenants with sufficient time to vacate the property, ideally at least two weeks, can be a pragmatic approach. This not only reduces legal costs, but minimizes costs related to property clean-up and clearing. As attorneys we need to be reasonable, moving out of one’s house doesn’t happen in a day. It’s important to recognize, and communicate as such to landlord clients, that tenants need time to get their moving and future housing situated.
Lastly, collaboration with local housing organizations can be an essential part of the eviction process. Attorneys should strongly consider working with local housing groups, such as Jesse Tree[x] in the Treasure Valley, who offer temporary rental assistance in cases of non-payment evictions. Such collaborations can aid in achieving favorable outcomes for both landlords and tenants, ensuring a more cost effective, balanced, and fair eviction process.
Conclusion
Navigating the Idaho eviction process is a multifaceted task that demands a thorough understanding of the specific type of eviction being pursued. Attorneys practicing in this area of law should be well-versed in Idaho’s statutes and procedures to effectively represent their clients. By following the guidelines and best practices outlined in this article, attorneys for landlords can more confidently navigate the eviction process and help their clients achieve their desired outcomes.
Katelin E. Bartles
Katelin E. Bartles is a solo practitioner based in the Treasure Valley. A graduate of the University of Idaho College of Law, Katelin has been handling evictions since 2020. In addition to practicing law, Katelin enjoys skiing, golfing, and brunching.
[i] Idaho Code § 6-303(2).
[ii] Id.
[iii] I.C. § 55-307(3).
[iv] Tenants do not have an ownership interest in the property there are leasing under a standard lease. However, if the lease includes additional terms, such as rent to own language, it’s possible the tenant may have an ownership interest in the property.
[v] I.C. § 6-303(5).
[vi] I.C. § 55-2004.
[vii] I.C. § 6-316(2).
[viii] Id.
[ix] I.C. § 6-316(2).
[x] https://www.jessetreeidaho.org.
Communications Department Report
by Lindsey M. Welfley
I am happy to report that our communications initiatives had a successful year in 2023 and we are heading into 2024 with this same consistency in mind. There are two main projects this year that we would like to call your attention to: the Desk Book Phase Out and Communications Survey.
Desk Book Phase Out
At their February 2023 meeting, the Idaho State Bar Board of Commissioners approved a four-stage phase-out plan for the Desk Book Directory. Phase One began in Spring 2023 by introducing a new “Rules-Only” book for new admittees. Phase Two will be this Spring and will consist of a switch to affirmative opt-in only to receive the hard copy of the Directory.
All members who received a hard copy of the Directory in 2023 will be sent an email this month with the option to opt-in. If you wish to receive a hard copy of the 2024-2025 Desk Book Directory, you must affirmatively opt-in.
The Rule Book, which is a truncated version of the Directory including only the relevant sets of rules, will be offered as an alternative if you do not respond to the opt-in email. If you have any questions about this process, I would be happy to answer your call at 208-334-4500.
Communications Survey
In 2010, we sent a Communications Survey to the membership with the intention of gaining insight into how our members obtain their information from us. We have not sent an updated version of this survey since and plan to do so this year.
We are currently developing the survey questions in conjunction with the Board of Commissioners and plan to disseminate this survey to the full membership in 2024. It is imperative that we receive a representative response to this survey for us to adequately assess the quality of our communications – please watch for that email and be sure to respond! It will only take a few minutes of your time and will be incredibly helpful to us. We look forward to hearing from you and learning how we can improve our methods of communication.
2024 Award Nominations
It is time again to gather up nominations for the various awards presented by the Idaho State Bar Board of Commissioners. Each year, the Board of Commissioners presents awards to members of the Bar who demonstrate exemplary leadership, professionalism, and commitment to the legal profession and to the public. Nominations can be submitted at any time throughout the year, but the current deadline for the 2024 awards is Friday, March 29th.
The Distinguished Jurist, Distinguished Lawyer, Outstanding Young Lawyer, Service, and Section of the Year Awards are presented at the Idaho State Bar Annual Meeting each July. The Professionalism and Denise O’Donnell Day Pro Bono Awards are presented at the Resolution Meetings in each recipient’s judicial district in the fall.
If someone comes to mind who you would like to nominate for an award this year, please fill out the submission form online at isb.idaho.gov/Awards. All of the award descriptions are listed in this webpage as well.
Aside from the previously mentioned Communications Survey, we are continually open to receiving feedback on how we communicate with you. Your input is always welcome.
Lindsey M. Welfley
Lindsey M. Welfley is the Communications Director of the Idaho State Bar, overseeing all communications-related initiatives of both the Bar and Foundation. She graduated from Grand Canyon University with her undergraduate degree in history in 2015 and has worked for the Bar ever since. Lindsey currently serves on the National Association of Bar Executives’ Communications Section Council. She lives in Boise with her husband, their almost-three-year-old daughter, and two pets.