[WSBARP] Common Grantor easement

[John M. Riley III]

Who is the other party?



John M. Riley, III
Principal | Witherspoon * Kelley
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From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Scott Kee
Sent: Friday, March 06, 2015 4:14 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Common Grantor easement

We are headed in that direction, Catherine.  My client owns Parcel B, and the trial court granted summary judgment finding the easement is valid.  The other party has appealed and the case will be heard in Division II.  One of my primary arguments was that "developers do this all the time" but I could not find any compelling authority supporting that position.    The trial court pretty much bypassed the DOT issue.

My client's title commitment identified the easement as an exception, and did not insure title to the easement.  I think we have a pretty good constructive notice argument as the easements were recorded, and the common grantor had filed documents with the County affirming his plans to develop parcel B and the necessity of the easement.

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>

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Clark, Catherine
Sent: Friday, March 06, 2015 3:56 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Common Grantor easement

This is a pet issue for me.  Please go get the reported decision answering the question.

Easements like this are required all the time by the permitting authorities but aren't valid.  Given Proctor v. Huntington's statement that equitable principles now apply to RE matters, there is a better argument that the easement survives and was valid in the first place.

Did the title commitment identify the easement, even if as an exclusion?  What does the policy say?  If so, then there is an argument for not only constructive notice but actual notice further supporting the argument in favor of the easement.

Catherine C. Clark
Law Office of Catherine C. Clark PLLC
701 Fifth Avenue, Suite 4105
Seattle, WA  98104
Phone:  (206) 838-2528
Fax: (206) 374-3003
Email:  cat at loccc.com<mailto:cat at loccc.com>

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Scott Kee
Sent: Friday, March 06, 2015 2:43 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Common Grantor easement

No.  No mention of the easement in the Deed or DOT.  CG did re-record the easements after the original DOT was recorded.

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>

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Bryce Dille
Sent: Friday, March 06, 2015 2:39 PM
To: WSBA Real Property Listserv
Subject: Re: [WSBARP] Common Grantor easement

Did the deed of parcel B mention the reservation of the  easement  that B had over A?

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Bryce H. Dille
Campbell, Dille, Barnett & Smith,  PLLC
P.O. Box 488
Puyallup, WA  98371
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bryced at cdb-law.com<mailto:bryced at cdb-law.com>

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From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Scott Kee
Sent: Friday, March 06, 2015 2:30 PM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Common Grantor easment

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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