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

[Erik Marks]

It sounds like the history includes a modest level of ambiguous intermingling of the concepts of a negative covenant (prohibition on development), severable development rights, and easement.  

My two cents would be to focus on having your client acquire such rights as are needed to preclude a challenge to his development plans.  So, from that perspective, it does not matter if the right that was created was a negative covenant, severable development right or easement, so long as no one asserts it against your client at a later date.  If the “Seller” is the original holder by reservation of the right, then so long as you put a stopper in any claim by Seller, or anyone claiming by through or under Seller, you are in good shape.  In other words, you don’t care what Seller obtained, or what Seller can convey to you, so long as Seller signs something like a Quitclaim Deed (With Express Termination of Development Covenant) that can serve to quash any assertion of rights by Seller at a later date.    

And of course put the Title Company into the conversation, as you also need to be sure the adverse right is not shown when your client goes to finance or sell the property.

Erik


-- 
Erik G Marks 
Attorney at Law 
PO Box 16247
Seattle, WA 98116
  
(206) 612-8653
mailto:erik at egmrealestate.com
Physical Office:
4220 SW Spokane St
Seattle, WA 98116