[WSBARP] WSBARP Odd situation

[Carmen Rowe]

Craig -

The short answer to your question to your question (pasted below my email,
I'm on digest) is no, they cannot unilaterally now impose a charge.

As someone else said, it is a contract, and you need both sides. Another
way to look at it is the lack of consideration, which your explanation in
your second response on the list gets at.

The only way it would work is if there is something in the easement itself
that expressly incorporated the covenants (and I mean, expressly) as
governing or impacting the easement rights in any way. Then, depending on
the language and facts, it might - might - be arguable that the easement
holder is subject to future legally passed covenant changes, including
charges, if such a decision was within the association's powers of
amendment or rule-making authority.

But somehow I strongly doubt that is the case, just searching my brain for
a hypothetical where it would work. It's also hard to say how someone not
bound by the covenants is now somehow subject to the covenants - even if
there had been some language to that effect in the easement, how is a
non-association owner supposed to know what the covenants are or
participate in their changes? I think few courts would find that someone
went into an easement expecting change from unknown factors they have no
say or control in ("intent" being the name of the game in interpretation).

Not on point, but interesting this came up just after I read the attached
case for another matter - the easement rights of a non-association neighbor
over association property, and association wanting to impose some
conditions. Interesting discussion of respective rights.

*Nw. Props. Brokers Network, inc. v Early Dawn Estates Homeowner's Ass'n, *295
P.3d 314 (Wash. Ct. App. 2030) No. 42426-6-II

(Upshot: In light of some substantial security problems, Association was
reasonable in having locked gate, not giving him a key (he had other ways
to access), and not letting him leave gate open when expecting guests
(there were alternative means for access) - but, unreasonable in wanting
him to pay assessments for road maintenance on top of his
easement-contractual % contribution (and part of that was fact he was not
part of the association); he could have his businesses names listed on
keypad just as they had individuals' names on keypad, and association had
no standing anyway to enforce sign restrictions from his short-plat, and
association restrictions did not apply to him; plus, his ATV use was within
scope of easement (minimal transportation, not recreational))


Carmen Rowe



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Email:  Carmen at GryphonLawGroup.com

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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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