[WSBARP] Duty to restore easement area - 2nd Call

Fri Sep 21 16:26:29 PDT 2018

I run into this issue every once in a great while (thrice, I believe.)  Each time the issue was resolved, although the last time a neighbor’s contractor was balky.  I relied on Davis v. Baugh, 159 Wn.2d 413 and argued that there was no shield for a contractors negligent work.  That worked in that instance.

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Craig Blackmon
Sent: Friday, September 21, 2018 1:53 PM
To: WSBA Real Property List Serve <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Duty to restore easement area - 2nd Call

Yes, I agree, the servient owner has no duty to maintain or restore the easement area (I found this case too - so thanks for the affirmation!).

What about the dominant owner? Does he or she have a duty restore the easement area once he or she disturbs it pursuant to its use (e.g. repair of a line)? That is my question.

Amazingly enough, its starting to look like there is very little legal authority on the subject. Probably because neighbors end up doing the neighborly thing and restoring the easement area once disturbed. If only attorneys saw the world in the same light....

Craig

Craig Blackmon, Attorney at Law

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On Fri, Sep 21, 2018 at 1:18 PM NC <seaseanc at gmail.com <mailto:seaseanc at gmail.com> > wrote:

You may consider  Donner v. Blue, 347 P. 3d 881 - 2015 

¶ 12 And according to a leading treatise on real property easements, servient owners ordinarily owe no duty to the dominant owner to repair or maintain the easement unless an agreement varies these duties:4

Servient owners, according to the New Restatement, have no duty to the dominant owner to “repair or maintain the servient estate or the facilities used in the enjoyment of the easement or profit.” Because the duty to maintain an easement ordinarily rests on the easement owner, servient owners had no duty to construct stairs to the beach for the benefit of a dominant estate owner. 7 Thompson on Real Property: The Law of Easements § 60.05(a) (David A. Thomas ed., 2d ed.2006) (footnote omitted) (quoting Restatement (Third) of Prop.: Servitudes § 4.13(3) (2000)). There is scant Washington case law on point. Blue cites several cases from other states discussing in general the lack of any duty on the servient estate owner to remove or cut back vegetation that encroached onto an easement. Smith v. Muellner, 283 Conn. 510, 932 A.2d 382 (2007); Schwartz v. Murphy, 74 Conn.App. 286, 812 A.2d 87 (2002); Suitts v. McMurtrey, 97 Idaho 416, 546 P.2d 62 (1976). The Donners properly concede that easement owners owe a duty to maintain the easement benefitting their dominant estates. Appellants' Reply Br. at 1. Nevertheless, the Donners argue with no citation to authority that Forbus controls over easement law. We are unaware of any case that extends the rule in Forbus to the easement interest context. We decline to do so here.

On Fri, Sep 21, 2018 at 1:16 PM Craig Blackmon <craig at lawofficeofcraigblackmon.com <mailto:craig at lawofficeofcraigblackmon.com> > wrote:

Ah, I'll give it one more shot. I'd rather be lucky than good (at legal research). But if not, Monday I will be off to the law library.

To recap: Does an easement impose a duty to restore the area if disturbance is required or its use, where it does not say so expressly? 

For example, a simple side sewer easement makes no mention of a duty to restore. The benefited estate disturbs the area in making a necessary repair, and refuses to restore the area to its prior condition. Does the burdened estate have a remedy?

I just can't believe this has never come up. Thanks, and enjoy the weekend, all!!

Craig

Craig Blackmon, Attorney at Law

Seattle Real Estate Lawyer <http://www.seattlepropertylawyer.com/> 

92 Lenora St. (The Makers Space, a shared work environment) 

Seattle WA 98121

Office/Cell: (206) 369-5949   Fax: (206) 770-7328 

@LawyerBroker <https://twitter.com/LawyerBroker> 

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On Thu, Sep 20, 2018 at 3:26 PM Craig Blackmon <craig at lawofficeofcraigblackmon.com <mailto:craig at lawofficeofcraigblackmon.com> > wrote:

'Mates, opposing counsel and I are having a friendly dispute about the existence of a duty, if any, to restore an easement area, where disturbance is required for its use. Assume the easement itself makes no mention of such a duty. Does it exist?

For example, a simple side sewer easement makes no mention of a duty to restore. The benefitted estate disturbs the area in making a necessary repair, and refuses to restore. Does the burdened estate have a remedy?

Thoughts? Cites? The group wisdom is as always humbly appreciated.

Craig

Craig Blackmon, Attorney at Law

Seattle Real Estate Lawyer <http://www.seattlepropertylawyer.com/> 

92 Lenora St. (The Makers Space, a shared work environment) 

Seattle WA 98121

Office/Cell: (206) 369-5949   Fax: (206) 770-7328 

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How to Buy Without an Agent <http://www.seattlepropertylawyer.com/blog?category=Buy+without+an+Agent>  | How to Sell FSBO <http://www.seattlepropertylawyer.com/blog?category=Sell+FSBO>  | RE Glossary <http://www.seattlepropertylawyer.com/blog?category=Real+Estate+Glossary> 

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