[WSBARP] Another odd situation

[Craig Gourley]

This is why it is odd.  The easement is for a specific use and then the later recorded covenant basically says  " That easement that you have, now you need to pay the burdened property to do what is allowed under the easement"   No expanded use or benefitted parcels, same right, but now you are required to pay an arbitrary sum set by the burdened parcel.   So does a covenant serve to modify the easement?  Why have an easement if you now need to essentially lease the right you were previously granted under the easement.   Think of it this way.  I have a driveway easement over your property.  HOA passes a covenant saying that you can charge me anything you want to continue using that driveway.  Never something like this before.

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Gregory L. Ursich
Sent: Wednesday, May 10, 2023 3:00 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Another odd situation

Craig: An easement is a form of a contract for a specified use of land. Seems to me if an express term is to charge for additional "users" , if it is in the easement, could be enforced. But when in a separate covenant, I guess it would depend on the specific relationship between the two documents. Doe one reference or incorporate by reference the other?

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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 Craig Gourley
Sent: Wednesday, May 10, 2023 2:19 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: [WSBARP] Another odd situation

Client has a property which benefits from an easement.  Other properties in the development also have separate easements over the burdened property.  Many yeas later the covenants were revised ( not the easement) to state that the burdened property could charge for the use of the easement.  No price or formula was included just a statement that they could charge.  As to be expected,  this has now become an issue.  Anyone ever heard of a covenant allowing a party being allowed to charge for a recorded easement to be used for its intended purpose?  Thanks, Craig


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