[WSBARP] Duty to restore easement area - My Final Analysis

[Craig Blackmon]

For those interested...

Thankfully I will not need to force this particular issue. However, for the
"group mind" I can tell you that, by my analysis and research, there is at
best an implied duty arising out of the principle that the servitude holder
may not unreasonably impair use of or cause unreasonable damage to the
servient estate. I think this dovetails with Craig's supposition that waste
principles would apply.

Also of note: I now question whether a court can impose a "maintenance
easement" encompassing a structure on dirt adversely acquired as a result
of the encroachment. See Anderson v. Hudak, 80 Wn.App. 398, 907 P.2d 305,
(Div. 2 1995). This was news to me.

If you'd like to see my notes, here <https://anotepad.com/notes/gd7cig>
they are.

Thanks everyone.

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>
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>
CONFIDENTIALITY NOTICE: This communication is a private, confidential
electronic communication encompassed by 18 USC 2510. It is for the sole use
of the intended recipient and receipt by anyone other than the intended
recipient does not constitute a loss of its confidential or privileged
nature.  Any review or distribution by others is strictly prohibited. If
you are not the intended recipient please inform the sender and destroy all
copies.


On Sat, Sep 22, 2018 at 11:48 AM Craig Gourley <craig at glgmail.com> wrote:

> Interesting question that I have never had the need to answer.  While I
> have nothing to back me up my first impression would be a theory akin to
> waste. The benefitted party has only the rights set forth in the easement
> and the burdened parcel retains all others. If the damage interferes with
> the  burdened parcel's rights to to the retained interest you may have a
> waste argument. I will be interested in hearing what you ultimately find
> out.
>
> Get Outlook for Android <https://aka.ms/ghei36>
>
> ------------------------------
> *From:* wsbarp-bounces at lists.wsbarppt.com <
> wsbarp-bounces at lists.wsbarppt.com> on behalf of Scott Thomas <
> scott at scottgthomaslaw.com>
> *Sent:* Saturday, September 22, 2018 1:26:29 AM
> *To:* 'WSBA Real Property Listserv'
> *Subject:* Re: [WSBARP] Duty to restore easement area - 2nd Call
>
>
> 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
>
> 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>
>
> 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>
>
> CONFIDENTIALITY NOTICE: This communication is a private, confidential
> electronic communication encompassed by 18 USC 2510. It is for the sole use
> of the intended recipient and receipt by anyone other than the intended
> recipient does not constitute a loss of its confidential or privileged
> nature.  Any review or distribution by others is strictly prohibited. If
> you are not the intended recipient please inform the sender and destroy all
> copies.
>
>
>
>
>
> On Fri, Sep 21, 2018 at 1:18 PM NC <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> 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>
>
> 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>
>
> CONFIDENTIALITY NOTICE: This communication is a private, confidential
> electronic communication encompassed by 18 USC 2510. It is for the sole use
> of the intended recipient and receipt by anyone other than the intended
> recipient does not constitute a loss of its confidential or privileged
> nature.  Any review or distribution by others is strictly prohibited. If
> you are not the intended recipient please inform the sender and destroy all
> copies.
>
>
>
>
>
> On Thu, Sep 20, 2018 at 3:26 PM Craig Blackmon <
> 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
>
> @LawyerBroker <https://twitter.com/LawyerBroker>
>
> 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>
>
> CONFIDENTIALITY NOTICE: This communication is a private, confidential
> electronic communication encompassed by 18 USC 2510. It is for the sole use
> of the intended recipient and receipt by anyone other than the intended
> recipient does not constitute a loss of its confidential or privileged
> nature.  Any review or distribution by others is strictly prohibited. If
> you are not the intended recipient please inform the sender and destroy all
> copies.
>
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbarp
>
>
>
>
> --
>
> Nicholas L. Clapham
> (407)484-9625
>
> NOTICE- This email message may contain confidential and privileged
> information. It is intended only for the named recipient(s) and may
> contain
> attorney work product and/or information exempt from disclosure under
> applicable law. Any unauthorized use is prohibited.  If you are not the
> intended recipient, please contact the sender by reply email and destroy
> all copies of the original message. This does not constitute an electronic
> signature.
>
> Pursuant to U.S. Treasury Department Circular 230 and other IRS
> regulations, unless we expressly state otherwise, any tax advice contained
> in this communication (including any attachments) was not intended or
> written to be used, and cannot be used, for the purpose of (i) avoiding
> tax-related penalties or (ii) promoting, marketing or recommending to
> another party any transaction or matter(s) addressed herein.
>
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbarp
>
> _______________________________________________
> WSBARP mailing list
> WSBARP at lists.wsbarppt.com
> http://mailman.fsr.com/mailman/listinfo/wsbarp
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20180926/b1a4d2f2/attachment.html>