[WSBARP] WSBARP input please

[Carmen Rowe]

If I'm reading this correctly, you're using private road Tract P for
"public" traffic by allowing access to a neighboring lot. I'd say no - the
private road serves the properties, and while it's not an easement, I'd
still say you're overburdening it by using it for servicing properties
outside - without having done research on it, I'd bet that there is an
analogous legal principle similarly limiting use on a shared interest lot.

That is the distinction with the case Rod cites (interesting and good case
on co-tenancy interest issues) - you're talking about access to
property *outside
*those benefitted by the commonly-owned tract.

I would think it would be a rare case that there is any language that would
accommodate an interpretation that owners would have been on notice to
expect use of this road to be extended to use by outside properties,
especially as they also have no obligation on maintenance.

You would then also be interfering with the rights of those other owners
(which is clearly prohibited by a co-tenant) by creating a scenario where
the outside property could claim a prescriptive easement over Tract P at
some point.

The better course is to have all who have an interest in Tract P agree to
give a license or an easement for access to Business, LLC's lot. I'm
assuming they are trying to avoid this because of cost? but I think without
the buy-off of the other co-tenants you run into myriad problems and invite
a big mess down the road.

Mind that if you do an easement (and maybe even license), if there are any
mortgages or other security interests on Tract P (whether directly or by
extension if this is part of the interest the other lot owners acquired
when they purchased their lots) you'll technically need their buy-off, too.
Otherwise anyone in that short plat may run into issues when they go to
sell/refinance later.

While an added cost, seems negotiating some price for this right is the
most supportable solution. The other plat owners may be happy to get a
little cash in exchange for minimal road traffic.



Carmen Rowe, Attorney/Owner



Phone: (360) 669-3576 (direct cell)
Email:  Carmen at GryphonLawGroup.com

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Thank you for taking the time to respond. Does it make any difference that
"Tract P" is not an easement? There is no dominant or servient estate. Each
Lot to the Short Plat has "an undivided interest in "Tract P"".

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of John McCrady
Sent: Tuesday, May 24, 2022 9:01 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] input please

You would need to study the title to the short plat to see where the
easement was created and who it was meant to benefit.  (it may have been
created before the short plat and then delineated on the short plat, or it
may have been created by delineation on the short plat.
Most easements created by delineation on the short plat would benefit only
the lots on the short plat, so a use by one of the short plat owners to
access property outside of the short plat may be considered improper use,
and subject to objection by the other short plat lot owners.

John McCrady
Counsel
Puget Sound Title Company
5350 Orchard Street West
University Place WA 98467
253-476-5721
j.mccrady at pstitle.com<mailto:j.mccrady at pstitle.com>
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