[WSBARP] Common Grantor easment

[Scott Kee]

Common Grantor(CG) owns adjoining parcels A and B.  CG realizes parcel B cannot sustain septic drainfield.  CG records drainfield easement for the benefit of Parcel B, and to the detriment of Parcel A.  CG then builds septic drainfield on parcel A, for the benefit of parcel B-obtaining approval from the county.  The drainfield was completed, but parcel B never hooked into the drainfield as development was not complete.

Running out of money, and trying to develop the property, CG grants Deed of Trust(DOT) to lender which encumbers only Parcel A(not Parcel B).  DOT has standard clause that dictates Trustee shall have power to convey at time of sale "all the interest the grantor had, or had the power to convey" at the time the DOT was executed.

CG then transfers Parcel B via Statutory Warranty Deed to Buyer.  CG then defaults on loan with lender, and lender successfully forecloses on Parcel A.  Assume Buyer received notice of foreclosure and there are no deficiencies with the Trustee's sale.


1.       Is easement created by CG for parcel B invalidated because of the common grantor?

2.       If the easement is not invalidated as a common grantor, does the power to convey language defeat the easement as the CG has the "power to convey(or destroy)" the easement at the time the DOT was executed, even though the easement is not mentioned in the DOT nor is Parcel B explicitly encumbered by the DOT?




C. Scott Kee
Rodgers Kee & Card, P.S.
324 West Bay Drive, Suite 201
Olympia, WA 98502
(360) 352-8311
scottkee at buddbaylaw.com<mailto:scottkee at buddbaylaw.com>

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