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

[Eric Nelsen]

Sam-default feature of easement in gross is that they are non-assignable by the benefited party. Here are some undigested chunks of WSBA Real Property Deskbook Vols. 1&2, Ch. 7 on Easements and Licenses:

Ch. 7.2:
An easement in gross is usually said to be a merely personal right to use another's land and is not attached to the estate occupied by an owner. 28 C.J.S. Easements §4(b); 25 AM. JUR. 2D Easements §1. Instead, it is attached and vested in the person to whom it is granted and is therefore not generally assignable or inheritable. The RESTATEMENT (THIRD) OF PROPERTY classifies easements as appurtenant (attached to a unit or parcel of land, in gross (not attached to a unit or parcel of land), and personal (belonging to a particular person and not assignable to another). RESTATEMENT (THIRD) OF PROPERTY §§1.5, 4.5 (2000). Easements in gross historically were not favored by the law and, correspondingly, a strong presumption exists in favor of construing easements as appurtenant when any doubt arises as to the intentions of the parties. Pioneer Sand & Gravel Co. v. Seattle Constr. & Dry Dock Co., 102 Wash. 608, 173 P. 508 (1918).

Ch. 7.7:
An easement in gross is a right personal to the grantee (see §7.2(3) above) and therefore lacks the element required to make it transferable with the landthat is, attachment to it. Instead, it is attached to the person to whom it is granted and therefore cannot generally extend beyond the life of the grantee. 28A C.J.S. Easements §18; 25 AM. JUR. 2D Easements §9.

(a) Alienability

An easement in gross cannot usually be assigned or otherwise transmitted to another. Alienability may only be allowed when the terms of the instrument creating the right so state or when the easement is of a commercial character. POWELL ON REAL PROPERTY §4:34:16 (Michael Allen Wolf ed., 2000 and Supp. 2007); 28A C.J.S. Easements §128; 25 AM. JUR. 2D Easements §90. But see RESTATEMENT (THIRD) OF PROPERTY §4.6 (2000), which states that the benefit of "servitudes" in gross is freely transferable. This rule is tempered by RESTATEMENT (THIRD) OF PROPERTY §1.5 (2000), which defines some servitudes as personal and not transferable. In some jurisdictions, however, an easement in gross is assignable unless necessarily or expressly personal to the particular grantee. Callahan v. Martin, 3 Cal.2d 110, 43 P.2d 788 (1935).

(b) Apportionment (division)

Easements in gross may be apportioned after transfer if the parties to the transfer clearly intended such action. Jolliff v. Hardin Cable Television Co., 26 Ohio St.2d 103, 269 N.E.2d 588 (1971).

Easements in gross are not as readily divisible as easements appurtenant because of the lack of limitation on use of the easements and, correspondingly, the servitude impressed on the servient estate subsequent to apportionment. Apportionment of easements appurtenant results in the same amount of use imposed on the servient estate because the needs of the dominant estate determine the degree of servitude. However, the amount of use of an easement in gross subsequent to apportionment would be greatly increased, because the amount of use of the independent easements is limited only by the use the grantees can possibly make of the easements. 2 AMERICAN LAW OF PROPERTY §8.84 (A. James Casner ed., 1952).

A factor of great importance in determining whether easements in gross may be apportioned is whether the easement is exclusive or nonexclusive. Exclusive use gives the grantee the sole power of use. RESTATEMENT (THIRD) OF PROPERTY §5.0 cmt. b. (2000). Nonexclusive use calls for the retention of the power and the right of use by the servient owner. Id. cmt. b. The courts will rarely allow apportionment in the latter cases because of the inconsistency apportionment would pose to the servient owner's privilege to use and to create use in others. Jolliff v. Hardin Cable Television Co., 26 Ohio St.2d 103, 269 N.E.2d 588 (1971). If the easement in gross is exclusive, however, it generally is apportionable because of the lack of increase in burden in such cases. RESTATEMENT (THIRD) OF PROPERTY §5.9 cmt. b (2000).

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of samuel at meylerlegal.com
Sent: Friday, April 21, 2023 1:38 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Conveyance/Transferability of Easement In Gross and Development Covenant

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

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