[WSBARP] Easement in Gross

[Richard Holland]

Thank you.  That was interesting reading - the Radovich case in particular - but if anything it clarifies for me that this is a non-issue if he grants the easement to an LLC.  Even if he is the 'owner' of the LLC, the LLC is a distinct legal entity.  To be safe, when he does convey the deed, it seems like it would be a good idea to specifically call out the easement in the deed as the Radovich Court used the "even if merger had occurred..."

And thanks others for clarifying as well that there is no clarification on the transferability of easements in gross - as I said, I do not think that is his intention in any case and I think I could mount a similar argument that so long as the LLC is the holder of the easement, no transfer issue even arises even if membership in the LLC were to change over time.

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of John M. Riley III
Sent: Thursday, May 05, 2016 2:29 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Easement in Gross

Read the Coast Storage and  Beebe v. Swerda cases.  They  will give you a flavor for the issues that arise when granting an easement to yourself.


John M. Riley, III

Principal | Witherspoon * Kelley

jmr at witherspoonkelley.com<mailto:jmr at witherspoonkelley.com> | Attorney Profile<http://www.witherspoonkelley.com/john-riley-1> | vCard<http://www.witherspoonkelley.com/s/jmr.vcf>


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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 Richard Holland
Sent: Thursday, May 05, 2016 1:00 PM
To: WSBA Real Property Listserv
Subject: [WSBARP] Easement in Gross

Ok, so client wants an easement over a portion of the property he wants to sell.  Has an LLC so, in theory, one can grant the easement over that area to the LLC as he wants in done in a separate document prior to sale not a reservation in the deed.

The issue is that it is an easement in gross by definition since there will not be an appurtenant property but rather just an area of the land he still wants to access and, essentially, maintain control over.  Going back on my ancient memory of property law, easements in gross were personal, non-assignable, etc.  Does this change with an LLC?  I mean, in theory, an LLC can have perpetual duration and change members etc.  Its not completely relevant to what client is trying to do and I do not believe he intends to assign it or leave it in his will in any event but I do wonder if somehow it could make the easement grant fail if that makes any sense.  I know of course that Cell Towers and Pipelines all have easements in gross, technically, but am thinking that there must be a specific law/regulation that gets them around the typical pitfalls of an easement in gross.  Any easement experts out there have a moment to chat this week?


Sincerely,

Richard Holland

Pacific Northwest Legal & Escrow, P.S.
733 7th Avenue, Suite 110
Kirkland, WA 98033
425-836-6240


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