[WSBARP] Input requested

[Carmen Rowe]

See, I don't know Rod - don't you think this is highly distinguishable
given that the case dealt with subdivision of property *within *the
community; where this case concerns accessing a property *outside *the
community? or am I reading the case wrong? It's complex, but if I sorted
through it correctly, I think it came down to objecting to the increased
use from someone subdividing a parcel within the community (rejecting the
argument that the road wasn't intended for use by more homes than was
originally there). This situation, however, talks about using the jointly
owned parcel to access a parcel outside the community altogether.

I would be concerned also with a prescriptive easement claim down the road
and whether creating a scenario that clearly sets everyone up for such a
claim isn't a prohibited "infringement" of the other co-tenants' interests.
You might argue that with the "permissive" use from one co-tenant (Business
LLC), that use of Tract P for access by the outside property would never
arise to that level. But I wonder if that still isn't a risk where there
wasn't permission by the other owners - as permission can be rescinded. Has
a case dealt with that in any way? I think it's darn sure that someone will
argue it down the road. Either way you are on shaky ground - as either
permission from one owner doesn't extend to permission from the others and
thus exposes the other owners to risk of prescriptive easement; or, if
permission from one owner precludes an easement because that owner is found
to "speak" on behalf of all owners, then the business runs the risk of one
of the other owners rescinding that permission, and now you're out the
access.

I am nearly certain now that I think about it that there is a case that an
easement cannot be granted without permission from all parties; a husband
had signed the easement but his wife was incompetent and had not agreed or
signed off, and the easement held invalid as she had not agreed to it. I'll
see if I can remember the name of the case.

Long & short, I think there needs to be a compelling reason to go through
what you need to create this access without getting permission from the
other tract owners to be worth taking this path (no pun intended), as I
just see this as opening a very interesting can of worms. And "interesting"
is never a good thing for the client.

Carmen Rowe, Attorney/Owner



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

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> Date: Tue, 24 May 2022 20:27:40 +0000
> From: Rod Harmon <rodharmon at msn.com>
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] input please
> Message-ID:
>         <
> IA1PR11MB63242D8013ED093646F5018AABD79 at IA1PR11MB6324.namprd11.prod.outlook.com
> >
>
> Content-Type: text/plain; charset="us-ascii"
>
> John:
> The court of appeals agrees with you.  Butler v. Craft Eng Const. Co., 67
> Wash. App. 684 (1992).
>
> Rod Harmon
>
> RODNEY T. HARMON
>        Attorney at Law
>          P.O. Box 1066
>       Bothell, WA   98041
>      Tel:   (425) 402-7800
>      Fax:  (425) 458-9096
>     www.rodharmon.com<http://www.rodharmon.com>
>    rodharmon at msn.com<mailto:rodharmon at msn.com>
>
>
>
>
>
> From: wsbarp-bounces at lists.wsbarppt.com On Behalf Of John McCrady
> Sent: Tuesday, May 24, 2022 12:07 PM
> To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
> Subject: Re: [WSBARP] input please
>
> That does change the formula.  In a tenancy in common each tenant enjoys
> equal use of the property.  As long as the use to access the non-short plat
> parcel does not unduly infringe on the other co-tenants' use of Tract P, I
> don't see any issue with using Tract P to access the other parcel.
>
> 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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