[WSBARP] Effect of Lender Foreclosure on Easement Agreement

Wed Feb 18 11:04:08 PST 2015

I agree with John. The security interest created by the Deed of Trust is as to the unencumbered parcel, and that is what is foreclosed upon. But I think John makes an excellent point that the easement is only extinguished if the dominant estate is given notice.

Steve

Stephen Whitehouse
Whitehouse & Nichols, LLP
Attorneys at Law
P.O. Box 1273
601 W. Railroad Ave.
Shelton, Wa. 98584
360-426-5885
swhite8893 at aol.com

-----Original Message-----
From: John McCrady <j.mccrady at pstitle.com>
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Sent: Wed, Feb 18, 2015 9:52 am
Subject: Re: [WSBARP] Effect of Lender Foreclosure on Easement Agreement

Sorry for coming in so late but I wonder if this is correct in all respects.  

The deed of trust conveys to the trustee “all of Grantor’s right, title and interest in…” the property.  The Notice of Trustee’s Sale should be sent to, among others: The vendee in any real estate contract, the lessee in any lease, or the holder of any conveyances of any interest or estate in any portion or all of the property described in such notice, if that contract, lease, or conveyance of such interest or estate, or a memorandum or other notice thereof, was recorded after the recordation of the deed of trust being foreclosed and before the recordation of the notice of sale;”  61.24.040 (1) (b) (iii)

It seems to me that an easement recorded subsequently to the foreclosing deed of trust would be treated like a junior mortgage.  If given notice of the Trustee’s Sale it would be wiped out by the Trustee’s Sale.

John McCrady

Counsel

Puget Sound Title Company

5350 Orchard Street West

University Place WA 98466

253-476-5721

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Tom J. Westbrook
Sent: Tuesday, February 17, 2015 5:51 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Effect of Lender Foreclosure on Easement Agreement

Hi Ron,

As you stated, if the easement is appurtenant to and runs with the land, no foreclosure would extinguish the easement. The foreclosing person (C) should have gotten title insurance when they elected to purchase at Trustee’s sale and if they did and it was not disclosed, then the title company may have a problem to C. If they didn’t, then too bad, it was a matter of public record. Not sure if the burden to build a public road was an easement requirement or a contractual agreement between two parties. You will need to research that – or at least, I would have to since I don’t know.

Sincerely,

Tom

Thomas J. Westbrook

Attorney at Law

Rodgers, Kee & Card

324 West Bay Drive NW, Suite 201

Olympia, Washington  98502

Phone: 360-352-8311

Facsimile: 360-352-8501

Email: tjw at buddbaylaw.com

Skype: thomas.westbrook

www.buddbaylaw.com

The information contained in this email and attachment(s) are for the exclusive use of the addressee(s) and may contain private, privileged and/or confidential information.  If you are not the addressee, you are strictly prohibited from reading, photocopying, distributing or otherwise using this email or its contents in any way. If you have received this communication in error, please notify us immediately by telephone at 360-352-8311 or by e-mail to reception at buddbaylaw.com, and destroy the original message from your electronic files.

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Ron Housh
Sent: Tuesday, February 17, 2015 5:16 PM
To: 'WSBA Real Property Listserv'
Subject: Re: [WSBARP] Effect of Lender Foreclosure on Easement Agreement

A grants B an easement across A’s land.

B agrees to develop a public road on the easement which road will then benefit both A and B who plan to separately develop their respective properties with single family homes.

B “goes under” and loses his property to a lender foreclosure.

C acquires B’s property from the lender.

C does not want the easement and when presented with the recorded easement says “the easement was extinguished at the time of the foreclosure.”  C obviously does not want to be burdened with having to build the public road.

1.        I don’t believe the easement is extinguished – in other words I do not believe foreclosures typically if ever extinguish easements.

2.       But – I am not sure about C’s obligation to build a public road.  C never assumed or agreed to assume that obligation.  Would the “run with the land” language in the recorded easement effectively pass the burden of building a public road to C?  

3.       Related question:  easement was recorded in 2007.  B actually did some work on the easement that was part of the public road construction process.  If the burden of building the public road does pass to C, when would a cause of action against B (and now C) accrue?  Wondering if there may be a statute of limitations issue? 

Thanks in advance for thoughts.

Ron 

I AM TYPICALLY IN THE SEATTLE OFFICE ON TUESDAY AND THURSDAY AND IN THE MOUNT VERNON OFFICE ON MONDAY, WEDNESDAY AND FRIDAY 

Ronald G. Housh, P.S.

Attorney at Law

Seattle Office:

1420 Fifth Avenue, Suite 3000

Seattle, WA 98101-2393

Phone:   206-381-1341

Fax:        206-464-0461

Email:    ron at housh.org

Mount Vernon Office:

21411 Bluejay Place

Mount Vernon, WA 98274

Phone:  206-235-2459

Email:   ron at housh.org

_______________________________________________
WSBARP mailing list
WSBARP at lists.wsbarppt.com
http://mailman.fsr.com/mailman/listinfo/wsbarp

-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20150218/b47b86f8/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.jpg
Type: image/jpeg
Size: 3629 bytes
Desc: not available
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20150218/b47b86f8/image001.jpg>