[WSBARP] Does Beneficial easement survive Trustee's sale

[Scott Kee]

Listmates:

I have a developer client who purchased Parcel A via statutory warranty Deed in 2012. In 2008, the then owner of Parcel A entered into, and recorded, a stormwater pond easement agreement with the adjoining landowner.  They both needed a stormwater pond that was to be located on Parcel A.  In the agreement, the adjoining landowner and the owner of Parcel A agreed to split the costs when the stormwater pond was completed.  With the economic downturn, neither of the properties, nor the stormwater pond, was developed.  Parcel A was transferred to the lender via Trustee's Deed, and then subsequently sold by the lender to the entity from which my client purchased the property.   The adjoining property was transferred via a Deed in Lieu of Foreclosure to the lender, and the lender then sold the property to a public entity that apparently has no interest in developing the property.

The DOT that was foreclosed upon was recorded prior to the agreement between the property owners(the sale occurred well after).

Two preliminary issues:


1.       My client wants to develop Parcel A and wants to know the enforceability of the original agreement.  He would like to make the current owner of the adjoining property shoulder some of the costs.   I am concerned that the Trustee's sale foreclosed any agreement between the landowners.  However, this does not seem logical as that would be detrimental to the beneficiary, and benefit the adjoining landowner.


2.       The agreement between the parties clearly says that when(not if) development occurs, the other has to pay the costs.  I am sure neither of the parties to that agreement envisioned a scenario where development would not occur.  Any concerns about binding a subsequent landowner to shoulder the costs associated with development it does not seek.

Does anyone see any other landmines?

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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