[WSBARP] Conveyance/Transferability of Easement In Gross and Development Covenant

[samuel at meylerlegal.com]

Listmates,

 

A developer is considering the purchase of development rights over a portion
of a property.  The development rights are documented by a Development
Easement In Gross and a separate Development Covenant.  The Seller of the
development rights previously owned the servient tenement.  At the time that
they sold the property, they retained the interest and rights afforded by
the Easement In Gross and Development Covenant.  The general purpose of the
Easement In Gross and the Covenant is the same: Provide the Seller with the
right to develop the area, short plat it and sell it off.  My sense is that
the drafter of these materials may have been trying for the belt and
suspenders approach, which I can appreciate.  

 

My understanding, and I would love for someone to tell me otherwise, is that
an easement in gross is generally considered to be a right that is personal
to the party to whom the easement is granted.  The Development Easement In
Gross in this case does not contain language that permits assignment or
transfer, does not contain language that would bind heirs, successors and
assigns, and does not recite that it is appurtenant.  The Easement In Gross
purports to convey an "exclusive easement in gross" for the "exclusive
future right to develop the easement area into a second lot," although the
"exclusive" nature of it could be interpreted as exclusivity with respect to
the Grantor's use of the easement area for the purpose of protecting the
rights of the holder.  The Easement In Gross also references the separately
recorded Development Covenant.  The Development Covenant does provide that
the covenant runs with the land, if freely assignable and binds any
successors, heirs and assigns.   

 

Can an easement in gross that does not purport to be appurtenant in nature,
assignable or binding on successors be conveyed by a quit claim deed?  If
not, it seems extremely problematic to assign/transfer the rights under the
development covenant, thereby severing the unity of interest/rights of the
holder of the easement from the holder of the rights under the covenant.
Any thoughts or experience anyone has with this situation 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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