[WSBAPT] Common-owner Granting Easement to Self?

[Timothy Lehr]

I’ve drafted plenty of these easements for developers and private lot owners alike, which have all been approved by city planning departments. I set mine out as a Declaration of Easement, wherein the lot(s) owner “declares” and “grants” and easement for Lot x and the future owners, assigns, transferees etc. Let me know if you would like a template to review.

Tim

Timothy C. Lehr
Attorney at Law

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From: David Faber <david at faberfeinson.com>
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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