[WSBARP] Access Easement & Parking Rights

Thu Jun 1 16:38:54 PDT 2023

Paul -

There's virtually no case law in Washington applying the concept of
exclusivity or discussing it. There is a fairly recent decision listing the
possible meanings of "exclusive" (there are 3, if I recall correctly) and
saying that using the term "for the exclusive use [of]" by itself does not
necessarily make the easement unambiguous, thus avoiding the need to review
extrinsic evidence. Johnson v. Lake Cushman Maint. Co., 425 P.3d 560 (Wash.
App. 2018).

My takeaway is that if an easement is to be exclusive, it needs to specify
who and/or which activities are excluded. Therefore, where it's feasible, I
think it's better to just specify the prohibited acts by a given party.

*Spencer A. W. Stromberg*
Attorney at Law

1403 S. Grand Blvd., Suite 201-S
Spokane, WA 99203-2278

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On Thu, Jun 1, 2023 at 3:45 PM Paul Okner <paul at fremontlawgroup.com> wrote:

> Thanks, Spencer.  I'd be interested to hear why the "exclusive" language
> was/is problematic.  Too vague as to who is excluded?
>
> -Paul Okner
> *Fremont Law PLLC*
> 3429 Fremont Pl. N.,  Suite 305
> Seattle, WA 98103
> (206) 399 - 1922
>
>
> On Thu, Jun 1, 2023 at 3:07 PM Stromberg, Spencer <spencer at lucentlaw.com>
> wrote:
>
>> Having recently litigated an easement case involving issues relating to
>> "exclusive" easements, my suggestion would be to stay away from describing
>> portions as exclusive. Instead, I suggest just including a covenant by the
>> owner of the servient parcel to refrain from any use of the easement area
>> that would impede the dominant owner's use, including but not limited to
>> parking vehicles or placing any personal property or improvements in the
>> easement area. In a separate portion of the easement agreement, include in
>> the dominant owner's rights the right to park RVs, etc. in the appropriate
>> portion of the easement area.
>>
>> *Spencer A. W. Stromberg*
>> Attorney at Law
>>
>>
>> 1403 S. Grand Blvd., Suite 201-S
>> Spokane, WA 99203-2278
>>
>> P: 509.455.3713
>> D: 509.828.4644
>> F: +1.509.455.3718 (must dial 1 before area code)
>> E: spencer at lucentlaw.com
>>
>> lucentlaw.com <https://www.lucentlaw.com/>
>> Facebook <https://www.facebook.com/lucentlaw>
>> LinkedIn <https://www.linkedin.com/company/lucent-law>
>> Twitter <https://twitter.com/LucentLaw>
>>
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>>
>> On Thu, Jun 1, 2023 at 1:49 PM Inge Fordham <inge at fordhamlegal.com>
>> wrote:
>>
>>> Colleagues,
>>>
>>>
>>>
>>> A client contacted me to prepare an easement for ingress, egress, and
>>> utilities over Parcel A for the benefit of Parcel B.  The width of the
>>> easement area is the northernmost 29 feet of Parcel A.  The client wants
>>> Parcel B to be able to park recreational vehicles, trailers, etc. along the
>>> side of the easement area and questioned whether we might include language
>>> in the easement allowing the same.  With a non-exclusive easement, if
>>> Parcel B can park recreational vehicles, trailers, etc. along the side of
>>> the easement area, Parcel A would have the same right.  The client wants to
>>> avoid that.  The only workaround I see is to draft a non-exclusive easement
>>> for ingress, egress, and utilities over the northernmost 20 feet of Parcel
>>> A, and an exclusive easement in favor of Parcel B over the southernmost 9
>>> feet of the easement area, for Parcel B to be park recreational vehicles,
>>> trailers, etc.  Are there any issues with including the non-exclusive
>>> easement and exclusive easement in the same document?  Curious whether any
>>> of my colleagues have drafted an easement like this and, if so, if there
>>> are practical considerations I should account for that I may not have
>>> thought of.
>>>
>>>
>>>
>>> Thank you,
>>>
>>>
>>>
>>>
>>>
>>> [image:
>>> uc%3fexport=download&id=1W3rEcChy0_E0cCfV5up02mkhwnL6eWIs&revid=0B4P5JoIHdbFaR29EbHlRWHFseFV5STZpSUVGeUNPWldkVDFVPQ]
>>>
>>> *Inge A. Fordham | Attorney*
>>>
>>> Fordham Law, PLLC
>>>
>>> 3218 Sixth Avenue | Tacoma, WA 98406
>>>
>>> Office: (253) 348-2657 | Mobile: (206) 778-3131
>>>
>>> www.fordhamlegal.com
>>>
>>>
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