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

Fri Apr 21 20:05:36 PDT 2023

Thanks, Eric.  Ch. 7.7(a) appears to indicate that it would be transferable
given the commercial nature of it, although it does not expressly state that
it is commercial in nature.  

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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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com>
On Behalf Of Eric Nelsen
Sent: Friday, April 21, 2023 4:32 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Conveyance/Transferability of Easement In Gross and
Development Covenant

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
<mailto:wsbarp-bounces at lists.wsbarppt.com>
<wsbarp-bounces at lists.wsbarppt.com
<mailto:wsbarp-bounces at lists.wsbarppt.com> > On Behalf Of
samuel at meylerlegal.com <mailto:samuel at meylerlegal.com> 
Sent: Friday, April 21, 2023 1:38 PM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com
<mailto: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:   <mailto:samuel at meylerlegal.com> samuel at meylerlegal.com

NOTICE:

This electronic message contains information which may be Confidential or
Privileged and constitutes an electronic communication within the meaning of
the Electronic Communications Privacy Act 18 USC 2510. The information is
intended to be for the use of the individual or entity named above.  If you
are not the intended recipient, please be aware that any disclosure,
copying, distribution or use of the contents of this information is
prohibited.  If you received this transmission in error, please notify the
sender and delete the copy you received together with any attachments.
Thank you.

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