[WSBARP] House Constructed Over Lot Line

Fri Aug 19 14:03:02 PDT 2022

I have taken the position that while such language creates an easement over one's own property and thus void on its face, if a buyer has  notice of the easement b/c it is recorded (constructive) and/or because it is disclosed in the commitment and/or disclosure statement (actual), then the buyer has consented to the easement thus validating it if the buyer purchases the property.

It is a chicken or egg situation seems to me.

Catherine "Cat" Clark
Law Office of Catherine C. Clark PLLC
110 Prefontaine Place South, Ste. 304
Seattle, WA 98104
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Email: cat at loccc.com<mailto:cat at loccc.com>

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Paul Neumiller
Sent: Friday, August 19, 2022 1:51 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] House Constructed Over Lot Line

Real estate developers record easements all of the time when they own multiple properties.  They have to have a subdivision's easements and roads in place before they sell the first lot.  I have seen the following language inserted into the document:

"FURTHER, it is stated that the unity of right, title and interest to Lot 10, Lot 11, and Lot 13 shall not affect these easement provisions and the same shall run with the land until such time as this easement is terminated according to the terms herein. As stated, this Declaration is expressly made to establish the stated easement, and is intended to apply to the lots described herein without operation of merger, despite the fact that Declarant currently owns all three lots."

This language was used by a real property attorney who owned the local branch to a statewide title insurance company.  I have used this language many many times but to be honest, I don't know if it has been tested in court.

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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 Rich Holland
Sent: Friday, August 19, 2022 1:20 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] House Constructed Over Lot Line

I do not know about a change in case law.  In situations like this, I would have the client put one of the properties into a sole purpose LLC first I think by qcd to avoid it as a potential issue

Rich on his phone
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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 David <dpw at thewilliamslawfirm.com<mailto:dpw at thewilliamslawfirm.com>>
Sent: Friday, August 19, 2022 12:58:57 PM
To: wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com> <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] House Constructed Over Lot Line

Listmates-a few days ago there was a post about an property owner who owned three contiguous lots who built his house on Lot B that extended 10 feet into Lot C. The consensus of how to deal with that issue was for the owner to grant an easement on Lot C for the benefit of Lot B. That was my thought as well.
Later, I recalled something for Stoebuck's Washington Practice where he states that an easement appurtenant "implies at least two parcels of land...and these parcels must be in separate ownership; one person who owns two separate parcels of land cannot have an easement across one that serves the other." He cites a 1918 case.102 Washi. 608, 173 P. 508.
Is the solution to clearly make the easement "in gross" or has there been a case that reverses the 1918 result?

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