[WSBARP] Ambiguous Easement - Another Try

Mon Jun 12 08:42:38 PDT 2023

It would be important, then, to define the dominant estate.  I don’t think there is one, though, because this looks more like an easement in gross than an easement appurtenant.  The HOA (the benefitted party) would have to be shown to have abandoned its right to create the community park.  It hasn’t created a “community park” there in the last 43 years since the CCRs were recorded, so perhaps the abandonment argument would prevail with respect to the community park.  However, some members of the community access the beach through that Lot.  Abandonment will be a more difficult argument to make with respect to access.

Mark B. Anderson
ANDERSON LAW FIRM PLLC
821 Dock St  Ste 209  PMB 4-12
Tacoma, Washington 98402
+1 253-327-1750
+1 253-327-1751 (fax)
marka at mbaesq.com<mailto:marka at mbaesq.com>
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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Douglas Scott
Sent: 06/10/2023 10:00 AM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Ambiguous Easement - Another Try

Mark,
Easements can be abandoned by the owner of the dominant estate.  A mere lack of use is not necessarily an abandonment.  An intention of the dominant estate to abandon the easement can be implied when the owner of the easement neither claims nor retains an interest in the easement.  It would seem that your facts indicate an intention to abandon. I would doubt that an easement was ever truly created. The more time that goes by the greater the intent to abandon if one was even created.

DOUGLAS W. SCOTT
Rainier Legal Advocates|LLC

465 Rainier Blvd. N., Suite C
Issaquah, Washington 98027
425.392.8550 (tel)
425.392.2829 (fax)

www.rainieradvocates.com<http://www.rainieradvocates.com/>

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On Fri, Jun 9, 2023 at 2:42 PM Mark Anderson <marka at mbaesq.com<mailto:marka at mbaesq.com>> wrote:
I sent this out on Monday but received no responses.  I really could use some input here – thanks.
A new owner of lakefront property discovered that the CCRs for his community contain the following provision:
Easements are reserved as indicated on the survey of [the plat], and as shown by instruments of public record, including but not limited to [2 well-described road and utility easements that are depicted on the survey]… and an easement over a portion of [the owner's lot] of the survey of [the plat] for a community park and lake access.
There is no further description of the easement for the community park and lake access.  And there is no "community park" depicted on the survey of the plat.  At first blush, the ambiguity of the easement area description would seem to bely the very existence of this easement.  At its worst, however, this language could seem to indicate that the entirety of the property owner's lot is subject to the easement rights of the HOA.
Who has encountered this before and what has been your approach?
Thanks in advance.
Mark B. Anderson
ANDERSON LAW FIRM PLLC
821 Dock St  Ste 209  PMB 4-12
Tacoma, Washington 98402
+1 253-327-1750
+1 253-327-1751 (fax)
marka at mbaesq.com<mailto:marka at mbaesq.com>
www.mbaesq.com<http://www.mbaesq.com/>
CONFIDENTIALITY NOTICE
This transmission is confidential and is intended solely for the use of the individual named recipient. It may be protected by the attorney-client privilege, work product doctrine, or other confidentiality protection. If you are not the intended recipient, or the person responsible to deliver it to the intended recipient, be advised that any dissemination, distribution, or copying of this communication is prohibited. If you have received this transmission in error, please immediately notify the sender via e-mail or by telephone at (253) 327-1750 that you have received the message in error, and then delete it. Thank you.

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