[WSBARP] easement issue

[Rob Wilson-Hoss]

Bryce, this is all I have - unreported, no Wa cite:

 

Unlike Beebe, the language accompanying the 'subject to' references in the
Jubie 2nd Plat does not indicate any intent to reserve or create an
easement. Potts has cited no authority suggesting that a mere 'subject to'
reference to a recorded document is sufficient to create an express easement
or resurrect an otherwise invalid easement. See von Meding v. Strahl, 319
Mich. 598, 30 N.W.2d 363, 369 (1948) ('subject to all easements' in a
conveyance means 'subject to all valid easements') (emphasis in original).
In Radovich v. Nuzhat, 104 Wn.App. 800, 16 P.3d 687 (2001), this court
recently held that an easement previously extinguished by merger of the
servient and dominant estates had been 'expressly recreated' by a subsequent
conveyance that 'clearly stated that it conveyed an easement, stated the
purpose and scope of the easement, and gave a legal description of the
servient estate.' Radovich, 104 Wn.App. at 806. The Jubie 2nd Plat contained
no comparable language. In summary, nothing on the face of the Jubie 2nd
Plat evidences an intent to grant an express easement. Accordingly, the
trial court properly entered summary judgment dismissing Potts' claim of an
express easement.

Potts v. Duane Smith, 113 Wash. App. 1051 (2002)

 

General thoughts -

 

Has it been ten years? Prescription under these circumstances is pretty
likely. Presumption of permissive use overcome by adverse acts and
assertions. 

 

Any workarounds? can the corporation ratify the signatures now? Restatement
Agency has a bunch of stuff about this.

 

Does grant of easement include any warranties? Leverage for corporation to
fix this? Was there a title guarantee, leverage for the title company to fix
it?

 

Robert D. Wilson-Hoss

Hoss & Wilson-Hoss, LLP

236 West Birch Street

Shelton, WA 98584

360 426-2999

www.hossandwilson-hoss.com

rob at hctc.com

 

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Bryce Dille
Sent: Wednesday, April 29, 2020 9:41 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] easement issue

 

I have a situation were  my client has a easement of record for a well on
adjoining property but burdened property owner disputes the validity of
easement because when easement was given by previous owner the burdened
property was owned by a corp and easement was signed personally by
shareholders of corp in their individual capacity. If the SW deed for the
burdened property states after the legal for the property conveyed certain
language that says "subject to" and then goes on to describe the alleged
defective easement in detail does that remove the alleged deficiency and
impose the easement according to the recorded terms of said easement  and
thereby bind the property in other words does that remove the alleged
deficieny of the recorded easement. Thanks in advance for your input.

 

Bryce H. Dille

Dille Law, PLLC

2010 Caton Way SW Ste. 101

Olympia, WA 98502

Office: 360-350-0270

Cell: 253-579-5561

 

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