[WSBARP] Encroachment Within Covenant for View Protection (Restrictive Easement)

[Samuel M. Meyler]

Listmates,

 

I'm looking for some input as to how to address and draft language to
address an encroachment within a .

 

Client owns neighboring lots, Lot 1 and Lot 2, and just built two homes on
the lots.  The lots are subject to a "Covenant for View Protection."  The
Covenant establishes height restrictions on the corners of the lots to
protect the view of the neighboring lots.  The protected area on Lot 1 is
intended to protect the view of Lot 2.  There is a protected area on Lot 2
as well that is intended to protect the view of Lot 3, but the owner of Lot
3 is a different party and we do not have a problem there.  This Covenant
affects about 20 homes.  

 

A survey was performed and it turns out that the roof overhang of the
residence that Client built on Lot 1 encroaches into the protected area by
less than one foot.  Obviously, no one is complaining about it right now
because Client owns both lots.  Given that Client owns both lots, the HOA
and Architectural Review Committee are willing to let it slide if Client
provides acceptable terms/language as between all future owners of Lot 1 and
future owners of Lot 2 addressing the issue.  The goal is simply to make
sure that future owners of Lot 2 do not submit complaints to the HOA about
the encroachment, do not sue the future owners of Lot 1, and that there is
no dispute between the Client's successors in interest to Lot 1 and to Lot
2.

 

I am probably overthinking this, but should Client, on behalf of all future
owners of Lot 2, release the Covenant for View Protection as it pertains to
the encroaching overhang?  Can they even do so without involving the owners
of all 20 lots affected by the Covenant?  Can Lot 2 grant an easement on an
easement (I know it sounds crazy)?  Should Client, on behalf of all
successor of Lot 2, grant an irrevocable license to all successor of Lot 1
to maintain the encroachment within the easement?  Can Client, on behalf of
all successors with regard to Lot 2 simply waive all future claims against
future owners of Lot 1?  

 

Any input or examples would be greatly appreciated.     

 

 

Samuel M. Meyler

Meyler Legal, PLLC 

221 1st Ave. West, Suite 320

Seattle, Washington 98119

Tel:  206.876.7770

Fax:  206.876.7771

Email:   <mailto:samuel at meylerlegal.com> samuel at meylerlegal.com

  

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