[WSBAPT] Responsibility for abatement

Thu May 25 15:58:57 PDT 2023

Regarding encumbrances, I was guided by the language of RCW 64.04.040, which discusses the form and effect of a bargain and sale deed:

Every deed in substance in the above form when otherwise duly executed, shall convey to the grantee, his or her heirs or assigns an estate of inheritance in fee simple, and shall be adjudged an express covenant to the grantee, his or her heirs or assigns, to wit: That the grantor was seized of an indefeasible estate in fee simple, free from encumbrances, done or suffered from the grantor, except the rents and services that may be reserved, and also for quiet enjoyment against the grantor, his or her heirs and assigns, unless limited by express words contained in such deed; and the grantee, his or her heirs, executors, administrators, and assigns may recover in any action for breaches as if such covenants were expressly inserted.

The second phrase that I underlined above indicates that the bargain and sale deed can contain limiting language, which could be used in a deed to property that has an abatement order against it.

Mark B. Anderson
ANDERSON LAW FIRM PLLC
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Tacoma, Washington 98402
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Roger Hawkes
Sent: 05/25/2023 2:41 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Responsibility for abatement

I don't think bargain and sale deeds require there to be no encumbrances.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Marcus Fry
Sent: Thursday, May 25, 2023 2:14 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Responsibility for abatement

Ken:
See RCW 11.12.070 (requires a mortgage to pass with the specifically bequeathed real property/personal property unless otherwise stated in Will) and In re McNulta's Estate (1932), which holds the same.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Mark Anderson
Sent: Thursday, May 25, 2023 11:23 AM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Responsibility for abatement

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Ken:

I recommend that the estate pay for the abatement and cleanup first and then transfer the house to the son.  A likely expectation of the father was that the value of the two houses was roughly equal.  It is similarly likely that the father did not anticipate a government-required cleanup of the property.  However, this would reduce the "remainder" available to the two children, impacting the amount received by the second child.  As such, I would also recommend that the children enter into a brief TEDRA agreement to approve this arrangement.

If the estate does elect to transfer the problem house to the son before abatement, I recommend using a quitclaim deed rather than a bargain and sale deed because the latter requires that the title be free from encumbrances.

Mark B. Anderson
ANDERSON LAW FIRM PLLC
821 Dock St  Ste 209  PMB 4-12
Tacoma, Washington 98402
+1 253-327-1750
+1 253-327-1751 (fax)
marka at mbaesq.com<mailto:marka at mbaesq.com>
www.mbaesq.com<http://www.mbaesq.com/>
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This transmission is confidential and is intended solely for the use of the individual named recipient. It may be protected by the attorney-client privilege, work product doctrine, or other confidentiality protection. If you are not the intended recipient, or the person responsible to deliver it to the intended recipient, be advised that any dissemination, distribution, or copying of this communication is prohibited. If you have received this transmission in error, please immediately notify the sender via e-mail or by telephone at (253) 327-1750 that you have received the message in error, and then delete it. Thank you.

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Ken Luce
Sent: 05/25/2023 11:04 AM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Responsibility for abatement

Father dies sleaving two children .Each gets a house and 50/50 of remainder. One house has hazardous materials. County has filed a complaint to abate the nuisance and a mandatory injunction of the nuisance on the property.  Who pays for the abatement and cleanup? The estate or  do we transfer the property it to the son and he pays for cleanup.

Kenyon Luce
Luce & Associates, P.S.
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Tacoma, WA 98424
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