[WSBARP] Restrictive Covenant/Easement Waiver? Enforceability by subsequent owner?

[samuel at meylerlegal.com]

Listmates, 

 

Original owner of Parcels A and B records a Boundary Line Adjustment ("BLA")
that includes the following language:  "30 foot access easement across
Parcel A for the benefit of Parcel B.  The access easement shall serve only
one single-family residence on Parcel B.  Parcels A and B shall be
responsible for the maintenance of that portion of the access easement
shared in common."  At the time, Parcel A is vacant and a single-family
residence already exists on Parcel B.  Parcel A is sold to Neighbor 1, while
Original Owner retains Parcel B.  

 

Neighbor 1 sells Parcel A to Neighbor 2 but it continues to sit vacant for
years.  Not taking into consideration the terms of the easement in the BLA,
Original Owner short-plats Parcel B into Lot 1 and Lot 2, builds a new home
on Lot 1 that they move into, and sells their old home on Lot 2.  The access
easement is now serving two homes on what was once Parcel B.  The two homes
on Lot 1 and Lot 2 would be inaccessible without the easement.  Neighbor 2
never raises an issue and builds a home on Parcel A.  In fact, not only does
Neighbor 2 not raise an issue, but they grant an easement to the local water
and sewer district upon and under the access easement to run water lines,
for the purposes of serving Parcel A and other properties with utility
service, which includes Lot 1 and Lot 2.

 

Parcel A changes hands a couple more times and the access easement continues
to serve two single-family residences without issue for more than 15 years.
Original Owner submits a new application to short-plat Lot 1 into two lots
where they intend to build another residence.  If successful, this would
result in the easement serving three single-family residences.  The Current
Neighbor, who has owned Parcel A for about three years without raising any
issues, submits a comment to the city objecting to the short-plat
application and advising that the proposed new residence would not have
access due to the restriction on the access easement.  Current Neighbor
takes the position that the decisions or failures of their predecessors to
enforce the terms of the easement do not prevent Current Neighbor from doing
so, even though there is no way to strictly enforce the restriction in the
easement at this point.  

 

Does Original Owner have an argument that the restriction in the easement of
serving a single-family residence has been completely waived/abandoned by
the predecessors, such that the Original Owner should be able to build a
third home that would be served by the easement?  Besides
waiver/abandonment, are there any other arguments that I might be missing
here?  Any caselaw that is on point would be greatly appreciated.  

 

Sam

 

 

Samuel M. Meyler

Meyler Legal, PLLC 

1700 Westlake Ave. N., Ste. 200

Seattle, Washington 98109

Tel:  206.876.7770

Fax:  206.876.7771

Email:   <mailto:samuel at meylerlegal.com> samuel at meylerlegal.com

  

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