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N Cal Attorney
N Cal Attorney, Lawyer
Category: Real Estate Law
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Experience:  Since 1983
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I am purchasing vacant land. The seller also sold the

Customer Question

I am purchasing vacant land. The seller also sold the adjoining parcel. Before selling, seller recorded a Declaration of Covenants and Easements with King County, WA. In that declaration, he "declares that lot 138 (ours) and 139 are subject to the covenants and easement set forth in this Declaration. These covenants and easement (a) are perpetual, (b) run with and are appurtenant to the land, and (c) may not be revoked or amended, in whole or in part, without the consent of all of the Lots affected by the proposed revocation or amendment."
He then goes on to define the Easement: "There shall be an exclusive easement over the portion of lot 138...for the use and benefit of lot 139." Although the document defines the location of the small Easement, nowhere does he describe what uses are allowed for the owner of 139 nor the restrictions for the owner of 138 (me). There is no deed, no granting. Intention of the seller is to give lot 139 the right to walk on this land and to prevent the 138 from building anything there.
Is this adverse possession or an Easement in Gross or an Appurtenant Easement? Was it properly "created"? I'm hoping that it is an Easement in Gross and that, as a result, the easement was "given" to the then owner, the seller, and dissolved when the property was sold. Or that since there is no deed giving the easement that it was not "created" in a way that would make it legally binding.
Note that the easement is a 100' x 15' triangle where the 15' is along waterfront and the 100' is along the property line at the water's edge. Both parcels are lake front.
I've tried to capture the essence of the situation without duplicating the entire, although short, declaration.
Submitted: 5 months ago.
Category: Real Estate Law
Expert:  Maverick replied 5 months ago.

Welcome! My name is Maverick. Please give me a few minutes to analyze and/or research your inquiry and I will be back.

Expert:  Maverick replied 5 months ago.

I will need to let another expert more qualified in these aspects of WA real estate law to assist you. Your deposit is still in tact and you need not do anything further on your end.

Customer: replied 5 months ago.
thanks
Expert:  N Cal Attorney replied 5 months ago.

Thank you for your question.

You wrote that the seller recorded the declaration of easement before the sale, so the easement is completely invalid because a person cannot create an easement in favor of himself on his own property.

"4. Extinguishment by Merger

An easement is extinguished by merger when servient and dominant tenements come into common ownership. Coast Storage Co. v. Schwartz, 55 Wn.2d 848, 351 P.2d 520 (1960). This is considered a merger of the easement into title. The policy behind merger is that an owner, whose title encompasses all the rights included within the easement, simply cannot own the same rights twice. The easement is not revived if the owner in whom it has been “merged” later conveys the land to another, unless upon express grant contained in the deed. See Radovich v. Nuzhat, 104 Wn. App. 800, 16 P.3d 687 (2001) (even if former easement was extinguished by merger, a new easement may be created by conveyance that expressly creates such easement). See also W. Stoebuck & D. Whitman, The Law of Property § 8.12 (3d ed. 2000). "

from

http://www.carneylaw.com/resources/documents/Law-of-Easements.pdf

An easement appurtenant was apparently intended but my opinion is that no easement was created. He could create one now by deeding you an easement at a described location across land he still owns "for ingress, egress, and utilities" or whatever purposes you can agree on. At the moment you are usinbg this land with no easement and arguably could eventually get an easement by prescription if you keep doing to for 10 years. That is not guaranteed since you thought that you had permission to use the easement.

You bargained for a property with an easement ad the seller will have to grant one, preferably in the deed granting you the property, or, in a later deed, but the biggestr problem is that when the seller sold the adjoining parcel without a valid easement he gave up the right to grant you an easement across that parcel unless he reserved it specifically in the deed he signed granting that parcel.

The bottom line here is the easement was not properly created, as you seem to have suspected.

You can get a free consultation from some of the real estate attorneys listed by location here.

You do not want to spend more on legal fees than the parcel is worth, so please consult a local attorney and proceed with caution. I would not proceed with this purchase until the easement issue has been resolved to the point that a title insurer will be willing to insure your title including the easement.

I hope this information is helpful.

Customer: replied 5 months ago.
Thank you, ***** *****Thanks for your thorough answer to which I of course agree :). I must have confused you because our parcel is the servient estate. Followup question, since the declaration document is recorded, it shows up in our title report. What do I need to do to clear it from the report?I assume you are a CA attorney and that I should probably get a second opinion from a WA attorney. Do you agree?
Expert:  N Cal Attorney replied 5 months ago.

You can ask the title company to ask its lawyers to rendfer an opinion on the valisity of the easement.

The link I gave cites Washington cases but I agree you should have a local attorney review the deeds and the declaration of covenants and easements.

Expert:  N Cal Attorney replied 5 months ago.

You can ask the title company to ask its lawyers to render an opinion on the validity of the easement.

If they think it is valid you can file an action to quiet title to remove the cloud on your title.

Customer: replied 5 months ago.
Thank you, ***** ***** I can't ask the title company without the risk that they will divulge it to the seller. If the seller finds out while he still owns the property, he would be able to rectify his mistake. I am willing to file the action after the sale has completed but would like a WA attorney's confirmation of your and my opinions (as you suggested). BTW, who does the action get filed with? I assume a court?
Expert:  N Cal Attorney replied 5 months ago.

A quiet title action has to be filed in the court in the County where the property is located.

You can get a free consultation from some of the Washington real estate attorneys listed by location here.