[WSBAPT] Common-owner Granting Easement to Self?

[Stuart Scarff]

David,

I generally include “Recitals” in my Easements and when I have a situation like yours with a common grantor, I entitle the document a “Declaration of Easement” and include language substantially as follows:

WHEREAS, despite _________ owning both Parcels A and B, __________ intends this declaration and creation of the easement described for the benefit Parcel B not be eliminated by the doctrine of merger and that the easement be created immediately and/or referenced in the conveying document and spring into existence upon Parcel A or Parcel B being conveyed to a 3rd party.

It's worth a shot. Let me know if Jefferson County accepts it.

Enjoy your weekend.

Stuart Scarff, Esq.
3035 Island Crest Way, Suite 201
Mercer Island, WA  98040
206.236.1500
206.905.5912 (fax)
www.scarfflaw.com<http://www.scarfflaw.com/>
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of David Faber
Sent: Friday, September 10, 2021 11:58 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Common-owner Granting Easement to Self?

C owns a single parcel made up of four lots, the two northerly lots of the parcel abut an opened right-of-way, while the two southerly lots are not served by any right-of-way (the adjacent right-of-way was vacated many, many years ago). C is working with the City to separate the two northerly lots from the two southerly lots in order to build another house on the two northerly lots. C's home is situated on the two southerly lots.

The City approved the division subject to the condition: "as the driveway for Parcel A crosses Parcel B's portion of vacated [x] Street, the applicant is required to submit to City staff a private easement document prepared by a legal professional, which is then recorded at the applicant's expense with the Jefferson County Auditor's office."

I prepared a private easement agreement for C to sign as both grantor and grantee, appurtenant to the now-separated parcels and submitted it to the planning department per the lots of record requirements. I have now spoken with the city attorney twice and the planning department once and they say the same thing "well, a person can't grant an easement to themselves". Yes, understood, but C will be unable to get a building permit to proceed without this easement in place, and the lots of record certification specifically states that we need to record this easement.

In the past, working with Jefferson County, they waived away this issue stating that because the easement is appurtenant, that the grantor and grantee is the same person doesn't present a problem and the easement will vest at the time of transfer to a third-party.

I'm at a loss for how to proceed. Any thoughts?

Best,
David J. Faber
Faber Feinson PLLC
800 Polk Street, Suite B
Port Townsend, WA 98368
(360) 379-4110

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