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

[Roger Hawkes]

Sam; the literal answer is 'yes'; there is always an argument.  I think the doctrines of not overburdening an easement and prescriptive easement/adverse possession might apply here.

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of samuel at meylerlegal.com
Sent: Tuesday, October 11, 2022 10:13 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Restrictive Covenant/Easement Waiver? Enforceability by subsequent owner?

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

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