[WSBARP] Extinguishment of easement and effect of security interest

Sat Apr 18 08:28:38 PDT 2020

I'm not seeing how this is any different than the inverse, creating an 
easement on property that is subject to an existing mortgage without the 
mortgagee's consent.  Is there any question that in that situation the 
foreclosure of the mortgage would wipe out the new easement?  In this 
other situation you still have three parties and the act of two not 
being able to adversely affect the third.

Make the hypothetical more extreme.  The easement was an access easement 
to the property, but not a necessary easement.  An access road could be 
built to an adjacent road, but due to topography the road would be 
expensive, thereby greatly reducing the value of the encumbered property.

Kary L. Krismer
John L. Scott, Inc.
206 723-2148

On 4/17/2020 4:14 PM, Eric Nelsen wrote:
>
> For anyone following this thread—I've been convinced at this point 
> that the security interest can effectively "revive" the easement upon 
> foreclosure, because the bundle of ownership and appurtenant rights 
> that are encumbered is essentially frozen at the time of executing the 
> mortgage or DOT. So if the borrower extinguishes an easement that 
> benefits the encumbered property, the extinguishment is effective 
> /between the neighbors/, but it does not extinguish the /lender's/ 
> contingent right to foreclose on the easement along with the 
> benefitted property. In order for the neighbor to fully extinguish the 
> easement, the neighbor would need both the benefitted owner's consent, 
> and the benefitted owner's lender's consent.
>
> So my argument below isn't right. Oh, well. Have a good weekend everyone--
>
> Sincerely,
>
> Eric
>
> Eric C. Nelsen
>
> Sayre Law Offices, PLLC
>
> 1417 31st Ave South
>
> Seattle WA 98144-3909
>
> 206-625-0092
>
> eric at sayrelawoffices.com <mailto:eric at sayrelawoffices.com>
>
> *Covid-19 Update - Sayre Law Offices remains available to serve our 
> clients and the public during this time, subject to the orders and 
> recommendations of government authority. Please do not hesitate to 
> contact us if we may be of service to you, your family, or your business.*
>
> All attorneys are working remotely during regular business hours and 
> are available via email and by phone; please call the Seattle office. 
> Videoconferencing also is available. Signing of estate planning 
> documents can be completed and will be handled on a case-by-case 
> basis; please call the Seattle office.
>
> MAIL AND DELIVERIES can be received at the Seattle office. For any 
> other needed arrangements, please call the Seattle office.
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> Be assured that we will continue to advise and support our clients 
> throughout this health emergency.
>
> *From:* wsbarp-bounces at lists.wsbarppt.com 
> <wsbarp-bounces at lists.wsbarppt.com> *On Behalf Of *Eric Nelsen
> *Sent:* Friday, April 17, 2020 3:22 PM
> *To:* WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> *Subject:* Re: [WSBARP] Extinguishment of easement and effect of 
> security interest
>
> I agree that mechanically the sheriff's deed or the trustee's deed is 
> likely to list the easement. But if the easement was previously 
> extinguished, I would argue that the deed cannot re-create the 
> easement, because the Deed of Trust can't have a security interest in, 
> or foreclose on, something that doesn't exist. But I guess that also 
> begs the question—I don't know that an extinguishment of an easement, 
> executed by the owner of the encumbered property, is effective. I 
> really think it should be, but I have nothing to back up my opinion.
>
> If I could rephrase the problem: We generally think of mortgages and 
> DOTs as being secured by land, a chunk of dirt that always exists and 
> always will exist. It can be transferred to someone else but it's easy 
> enough to envision that the security interest "stays" with the land 
> even if the ownership changes.
>
> But an easement can be "destroyed" by extinguishment in a way that 
> dirt can't. An easement isn't a fee interest and by definition has to 
> be situated /outside/ the boundaries of the dirt that is the main 
> focus of the security interest. The owner of land benefitted by an 
> easement has, so far as I am aware, a unilateral and unlimited right 
> to extinguish an easement that benefits the owner's property. It's not 
> a transfer away, it's a cancellation. And once it's cancelled, there 
> is no easement for the security interest to attach to.
>
> Sincerely,
>
> Eric
>
> Eric C. Nelsen
>
> Sayre Law Offices, PLLC
>
> 1417 31st Ave South
>
> Seattle WA 98144-3909
>
> 206-625-0092
>
> eric at sayrelawoffices.com <mailto:eric at sayrelawoffices.com>
>
> *Covid-19 Update - Sayre Law Offices remains available to serve our 
> clients and the public during this time, subject to the orders and 
> recommendations of government authority. Please do not hesitate to 
> contact us if we may be of service to you, your family, or your business.*
>
> All attorneys are working remotely during regular business hours and 
> are available via email and by phone; please call the Seattle office. 
> Videoconferencing also is available. Signing of estate planning 
> documents can be completed and will be handled on a case-by-case 
> basis; please call the Seattle office.
>
> MAIL AND DELIVERIES can be received at the Seattle office. For any 
> other needed arrangements, please call the Seattle office.
>
> Be assured that we will continue to advise and support our clients 
> throughout this health emergency.
>
> *From:* wsbarp-bounces at lists.wsbarppt.com 
> <mailto:wsbarp-bounces at lists.wsbarppt.com> 
> <wsbarp-bounces at lists.wsbarppt.com 
> <mailto:wsbarp-bounces at lists.wsbarppt.com>> *On Behalf Of *Joseph McIntosh
> *Sent:* Friday, April 17, 2020 2:27 PM
> *To:* WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com 
> <mailto:wsbarp at lists.wsbarppt.com>>
> *Subject:* Re: [WSBARP] Extinguishment of easement and effect of 
> security interest
>
> If I understand the question properly, the proposition I think you are 
> looking for is this -- the person auctioning the mortgaged interest, 
> whether a sheriff or trustee, gives the purchaser a deed to that 
> precise interest.
>
> So, here, the buyer at the foreclosure would acquire the mortgaged 
> interest, to include the easement.
>
> This is how, mechanically, junior encumbrances are extinguished by 
> senior lien sales.
>
> *From:* wsbarp-bounces at lists.wsbarppt.com 
> <mailto:wsbarp-bounces at lists.wsbarppt.com> 
> [mailto:wsbarp-bounces at lists.wsbarppt.com] *On Behalf Of *Eric Nelsen
> *Sent:* Friday, April 17, 2020 2:16 PM
> *To:* 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com 
> <mailto:wsbarp at lists.wsbarppt.com>>
> *Subject:* [WSBARP] Extinguishment of easement and effect of security 
> interest
>
> A philosophical question:
>
> B owns Blackacre, which has an easement appurtenant for a driveway 
> across Whiteacre, owned by W.
>
> B has a loan, secured by DOT on Blackacre. The DOT's legal description 
> says it covers "Parcel A: Blackacre and Parcel B: Easement for 
> driveway over Whiteacre."
>
> W and B execute a document extinguishing the driveway easement over 
> Whiteacre. So, the easement no longer exists.
>
> Then B's lender forecloses on its DOT.
>
> The question: Can the foreclosure "recreate" the easement over 
> Whiteacre? In other words, was the earlier instrument extinguishing 
> the easement ineffective because of the security interest, so that 
> when the lender forecloses on "Blackacre plus easement over 
> Whiteacre," the easement springs back into being?
>
> Related question: Same result if the DOT's legal description just said 
> "Blackacre" and didn't mention the easement appurtenant? Regardless of 
> whether or not an easement appurtenant is mentioned in a deed, it 
> travels with the benefitted land.
>
> Sincerely,
>
> Eric
>
> Eric C. Nelsen
>
> Sayre Law Offices, PLLC
>
> 1417 31st Ave South
>
> Seattle WA 98144-3909
>
> 206-625-0092
>
> eric at sayrelawoffices.com <mailto:eric at sayrelawoffices.com>
>
> *Covid-19 Update - Sayre Law Offices remains available to serve our 
> clients and the public during this time, subject to the orders and 
> recommendations of government authority. Please do not hesitate to 
> contact us if we may be of service to you, your family, or your business.*
>
> All attorneys are working remotely during regular business hours and 
> are available via email and by phone; please call the Seattle office. 
> Videoconferencing also is available. Signing of estate planning 
> documents can be completed and will be handled on a case-by-case 
> basis; please call the Seattle office.
>
> MAIL AND DELIVERIES can be received at the Seattle office. For any 
> other needed arrangements, please call the Seattle office.
>
> Be assured that we will continue to advise and support our clients 
> throughout this health emergency.
>
>
> ***Disclaimer: Please note that RPPT listserv participation is not restricted to practicing attorneys and may include non-practicing attorneys, law students, professionals working in related fields, and others.***
>
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