[WSBARP] Limits on use of exclusive easement

[Stromberg, Spencer]

I'm sure you already know some or all of the following, but I'm just
throwing out some thoughts along with snippets from some briefing and CLE
presentation materials. I hope it's helpful.

I think the answer here is going to depend on the precise terms of the
easement. The fact that it's "exclusive" isn't necessarily determinative of
whether it can be used to access 4 lots created out of 1. The exclusive
language could easily just mean the grantor (owner of parcel A) can't use
it or can't grant others the right to use it. It sounds to me like you (or
your client) are using "exclusive" to mean "in gross" - i.e. personal to
the grantee - but since easements in gross are disfavored, it seems
unlikely it would be interpreted that way.

In regard to exclusivity, take a look at Johnson v. Lake Cushman Maint.
Co., 5 Wn. App. 2d 765, 425 P.3d 560 (2018) and the Idaho case it relies
on.

In regard to in gross vs. appurtenant easements, take a look at 810
Properties v. Jump, 141 Wn.App. 688, 170 P.3d 1209 (Div. 3 2007):  "An
easement in gross directly benefits one person, and easement appurtenant
benefits a particular piece of property." M.K.K.I., Inc. v. Krueger, 135
Wash.App. 647, 655, 145 P.3d 411 (2006), review denied, 161 Wash.2d 1012,
166 P.3d 1217 (2007). Easements in gross are not favored; it is strongly
presumed that an easement is appurtenant. Id.; Pioneer Sand & Gravel Co. v.
Seattle Constr. & Dry Dock Co., 102 Wash. 608, 173 P. 508 (1918).

I think if the easement describes both the burdened (parcel A) and
benefitted (parcel B) land, then it would likely be held to be appurtenant.

Generally speaking, easements can be used to access the resulting parcels
when the original parcel is subdivided. See Richardson v. Cox, 108 Wn. App.
881, 26 P.3d 970 (Div. 3 2001), amended, 34 P.3d 828 (2001) and the Logan
case Catherine Clark sent (it's cited by Richardson).

It seems to me if the easement says it is limited to one single-family
residence or something of that nature, your client has a problem, but if it
just uses standard "ingress and egress" language, the subdivision of the
property probably isn't an issue under Richardson and Logan.


*Spencer A. W. Stromberg*
Attorney at Law


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On Wed, Aug 2, 2023 at 3:14 PM Joshua Grant <jgrant at advocateslg.com> wrote:

> Client is the owner of an access easement that goes across parcel A and it
> leads to the benefited parcel B which client owns.  It is an “exclusive”
> easement.  Client observes that it is a grant not only to client but also
> to client’s heirs and assigns.  Client now wishes to subdivide his Parcel B
> into 4 lots.  He also wants the new owners to be able to use the easement
> over Parcel A so they can get to their parcels.  The Client says “I will
> simply assign my exclusive easement to each of my buyers.”  The end result
> is that from one legal user of an exclusive easement, we now have 4 users
> of the exclusive easement.  My hunch is that it won’t work and Client needs
> to go to original grantor and get a new non-exclusive easement.  ???
>
> Josh
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