[WSBARP] Termination of easement due to hazards

[Roger Hawkes]

Impossibility rarely exists.  It is almost always a question of how much resources can one expend.

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of NC
Sent: Tuesday, January 15, 2019 9:30 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Termination of easement due to hazards

To add to my comment, you may also research "frustration of purpose" as set forth in the  Massachusetts decision reached  in Murphy v. Conway: 20 LCR 26 (2012)…these dramatic changes have resulted in the termination of the record 1911 easement. An easement is not to be undone because it has gone unused, nor simply because some of the granted rights may be less capable of convenient exercise. But the decisions of our courts instruct me that when an easement is granted for a particular purpose, it is to be used only for that purpose, and that, should the attainment of that purpose become impossible, the easement ought be treated judicially as no longer extant. .

On Mon, Jan 14, 2019 at 7:06 PM Eric Nelsen <Eric at sayrelawoffices.com<mailto:Eric at sayrelawoffices.com>> wrote:
Burdened parcel has no duty except to "not unreasonably interfere" with benefitted party's use. So if benefitted party wants to use it, it's their job to make it safe.

It would be a long shot for the burdened party to sue to extinguish the easement. I think it might be possible to argue that the benefitted party must only use the easement in a safe manner, and that it is outside the scope of the easement to use it in an unsafe manner with a hazardous means of descent, subjecting the burdened party to a risk of suit by an person injured on the easement.

The servient owner is entitled to impose reasonable restraints on use of the easement to avoid a burden on the servient estate greater than that originally contemplated. Green v. Lupo, 32 Wn.App. 318, 647 P.2d 51 (1982); Rupert v. Gunter, 31 Wn.App. 27, 640 P.2d 36 (1982).

If nothing else, that might be leverage to force the benefitted party to agree to sign an indemnification and agree to include the easement on their own homeowner insurance, to reduce the client's potential exposure.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>] On Behalf Of Craig Gourley
Sent: Monday, January 14, 2019 3:06 PM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Termination of easement due to hazards

Listmates,  I have been asked yet another question that I have not encountered before.   Client has an easement burdening their property.  It serves as ingress and egress for 3 nearby lots to access a river.   Over time the river has eroded the bank to the point that it is now a 20 foot tall unstable cliff from their property to the water.  The benefitted party has constructed a makeshift ladder to climb down the cliff.  The client’s  insurance company is less than thrilled and wants the easement “ cancelled”   Has anyone ever heard of an easement being terminated or somehow restricted when changing circumstances, beyond the control of the burdened parcel, renders the easement’s use dangerous?  Does the burdened parcel have any duty to improve or make safe a way to get to the water, which is the easement’s stated purpose?   Thanks in advance for your thoughts.   Craig

Gourley Law Group
Snohomish Escrow
The Exchange Connection

1002 10th Street / PO Box 1091
Snohomish, WA 98291

360.568.5065
360.568.8092  fax
Craig at glgmail.com<mailto:Craig at glgmail.com>


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