[WSBARP] Height Restriction

Wed Aug 12 09:48:19 PDT 2020

I think this is may be a covenant, not an easement, which makes the
evaluation easier:

In Washington, as elsewhere, there are three types of servitudes: 

“A servitude is a legal device that creates a right or obligation that runs
with the land” that “can be, among other things, an easement, profit, or
covenant.”    

Lake Limerick Country Club v. Hunt  Mfd. Homes, Inc., 120 Wash. App. 246,
253, 84 P.3d 295 (2004) (citing 1 Restatement (Third) of Property:
Servitudes § 1.1(1), (2), at 8 (Am. Law Inst. 2000)) (“The servitudes
covered by this Restatement are easements, profits, and covenants.”).

Robbins v. Mason Cty. Title Ins. Co., 195 Wash. 2d 618, 630–31 (2020).

Covenants can be created on one’s own property that spring when the property
is transferred. Developers do this all the time with HOA restrictive
covenants. “A ‘restrictive covenant’ is a negative covenant that limits
permissible uses of land.” Restatement (Third) of Property (Servitudes) §
1.3 (2000).

The notion that you cannot create a servitude on your own property is not
always very accurate. 

Robert D. Wilson-Hoss

Hoss & Wilson-Hoss, LLP

236 West Birch Street

Shelton, WA 98584

360 426-2999

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of nestor at pplsweb.com
Sent: Wednesday, August 12, 2020 6:49 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Height Restriction

How does an owner give an easement to himself? He owns both lots and wants
to create this easement before sale of the downhill lot. A colleague
recommended that we attach it to purchase contract and make the signing a
condition of sale.

Nestor

Nestor Gorfinkel, Attorney at Law

Licensed in Washington & Florida

Florida Civil-Law (International) Notary

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From: wsbarp-bounces at lists.wsbarppt.com
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<mailto:wsbarp-bounces at lists.wsbarppt.com> > On Behalf Of Gregory L. Ursich
Sent: Tuesday, August 11, 2020 8:09 PM
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Subject: Re: [WSBARP] Height Restriction
Importance: High

Nestor: I would create a separate easement agreement between the owner and
himself on that lot and get a definition of the view easement (Legal
description)  from a surveyor. Record that easement first, then record a
deed selling the lot with a reference in the deed that the conveyance is
subject to that view easement and reference the recording number of the
easement.

Gregory L. Ursich 

Shareholder

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[mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of nestor at pplsweb.com
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Sent: Friday, August 07, 2020 10:34 AM
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Subject: [WSBARP] Hight Restriction

Anyone have a deed where owner wants to convey neighboring lot with a Height
restriction?

Thanks and Happy Friday.

Nestor Gorfinkel, Attorney at Law

Licensed in Washington & Florida

Florida Civil-Law (International) Notary

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