[WSBARP] life estate v right to use

[Eric Nelsen]

Sounds to me like an easement in gross, terminating at death of the
benefitted party. Relevant excerpt from WSBA Real Property Deskbook (4th
ed. 2009) Vol. 1 Sec. 7.2(3):

 

An easement in gross is usually said to be a merely personal right to use
another's land and is not attached to the estate occupied by an owner. 28
C.J.S. Easements § 4(b); 25 AM. JUR. 2D Easements § 1.

Instead, it is attached and vested in the person to whom it is granted and
is therefore not generally assignable or inheritable. The RESTATEMENT
(THIRD) OF PROPERTY classifies easements as appurtenant (attached to a
unit or parcel of land, in gross (not attached to a unit or parcel of
land), and personal (belonging to a particular person and not assignable
to another). RESTATEMENT (THIRD) OF PROPERTY §§ 1.5, 4.5 (2000). Easements
in gross historically were not favored by the law and, correspondingly, a
strong presumption exists in favor of construing easements as appurtenant
when any doubt arises as to the intentions of the parties. Pioneer Sand &
Gravel Co. v. Seattle Constr. & Dry Dock Co., 102 Wash. 608, 173 P. 508
(1918).

 

So I'd start with a standard easement form, and amend/add clauses
indicating that the grant is personal to the grantee, exercisable only by
the grantee in person (and grantee's invitees?), runs with the burdened
parcel but does not run with any parcel as to the benefit, is not
assignable, inheritable, or otherwise transferable, and terminates
automatically at the death of grantee.

 

Sincerely,

 

Eric

 

Eric C. Nelsen

SAYRE LAW OFFICES, PLLC

1320 University St

Seattle WA  98101-2837

phone 206-625-0092

fax 206-625-9040

 

 

 

From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of Cyrus Field
Sent: Thursday, March 20, 2014 1:55 PM
To: wsbarp at lists.wsbarppt.com
Subject: RE: [WSBARP] life estate v right to use

 

Folks- I am working on a rather complicated real estate transaction where,
among other things, the grantors want to reserve the exclusive right to
use part of the property for life. My plan was to draft an agreement
spelling out the rights/responsibilities of each party that would be
attached to the recorded deed. However, I am a little hung-up on what to
call the agreement. Since they aren’t reserving the right to use all of
the property it doesn’t seem like the typical “life estate” but rather a
reserved “right to use” (“easement”?).  In addition, although the sellers
are not concerned, I am also wary about calling it a “life estate” as it
could potentially be more easily liened by the state for LTC benefits
provided to grantors in the future. Thoughts? Words of caution? Thanks in
advance, Cy

 

Cyrus W. Field, Attorney at Law (admitted in Washington and Oregon)

phone: 360-472-1223 Mail: POB 367, Shaw Island, WA 98286 Office: 640
Mullis St. Friday Harbor, WA

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As with all lists - let the reader beware! No warranties or
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All opinions and comments in this message represent the views of the
author and do not necessarily have the endorsement of the Washington State
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