Is recorded easement valid?

[jtay]

What is the name of your state (Washington)?

I am in Washington State and have a 17 acre piece of forest land with its only access across a narrow, unimproved lot of a platted subdivision. This lot is currently owned by the HOA. When I bought the land in 1976 (38 years ago), the owner also owned a lot in the subdivision, this lot adjoining the acreage, and the acreage legally separate from the subdivision. As a condition of sale, I required that the landowner grant me an easement over the lot for access only. He did and it was recorded with the county at time of sale. The easement reads: to me, my successors and assigns, and runs with the land. It has a 12 ft width from the property line and specifically gives me the right to trim trees etc. to maintain access. The HOA of the subdivision is now saying (first I've heard) that the original landowner was prevented by the covenants from granting an easement in the first place and that the easement is invalid. I do not have access to the covenants that were in effect 38+ years ago (I am not part of the HOA.) I feel the easement gives the land pretty much full unrestricted access for whomever I and successors allow, forever. I use the land regularly as a recreational cabin property and have built several buildings (to code). What is the correct interpretation?

 

[OK-LL]

What is the name of your state (Washington)?

I am in Washington State and have a 17 acre piece of forest land with its only access across a narrow, unimproved lot of a platted subdivision. This lot is currently owned by the HOA. When I bought the land in 1976 (38 years ago), the owner also owned a lot in the subdivision, this lot adjoining the acreage, and the acreage legally separate from the subdivision. As a condition of sale, I required that the landowner grant me an easement over the lot for access only. He did and it was recorded with the county at time of sale. The easement reads: to me, my successors and assigns, and runs with the land. It has a 12 ft width from the property line and specifically gives me the right to trim trees etc. to maintain access. The HOA of the subdivision is now saying (first I've heard) that the original landowner was prevented by the covenants from granting an easement in the first place and that the easement is invalid. I do not have access to the covenants that were in effect 38+ years ago (I am not part of the HOA.) I feel the easement gives the land pretty much full unrestricted access for whomever I and successors allow, forever. I use the land regularly as a recreational cabin property and have built several buildings (to code). What is the correct interpretation?

I would postulate that you have acquired a prescriptive right against the HOA if you have used the access continuously for 38 years. Without seeing the CCR in effect 38 years ago, it would be difficult to speculate whether the Easement document is valid. You can typically get a copy of those from the County Clerk's office.

 

[latigo]

What is the name of your state (Washington)?

I am in Washington State and have a 17 acre piece of forest land with its only access across a narrow, unimproved lot of a platted subdivision. This lot is currently owned by the HOA.

When I bought the land in 1976 (38 years ago), the owner also owned a lot in the subdivision, this lot adjoining the acreage, and the acreage legally separate from the subdivision. As a condition of sale, I required that the landowner grant me an easement over the lot for access only.

He did and it was recorded with the county at time of sale. The easement reads: to me, my successors and assigns, and runs with the land. It has a 12 ft width from the property line and specifically gives me the right to trim trees etc. to maintain access.

The HOA of the subdivision is now saying (first I've heard) that the original landowner was prevented by the covenants from granting an easement in the first place and that the easement is invalid.

I do not have access to the covenants that were in effect 38+ years ago (I am not part of the HOA.) I feel the easement gives the land pretty much full unrestricted access for whomever I and successors allow, forever.

I use the land regularly as a recreational cabin property and have built several buildings (to code). What is the correct interpretation?

Hopefully you will have the good sense to rely on the advice of your attorney rather than that from complete strangers, but I'd say that you are in good shape and out of curiosity ask you:

On what basis does the HOA claim that it is to benefit by any such restrictive covenants?

Does the deed through which HOA is claiming title, or any of that of its predecessors in title, mention that it is subject to the easement?

How does/would HOA respond to a claim that irrespective of the recorded easement you have acquired access rights by prescriptive use? Or that it is estopped from contesting your easements rights because of laches?

My questions are not to imply that the answers would be necessarily decisive nor again to be suggestive as legal advice. You definitely need to be consulting with a local attorney having expertise in Washington real property law.

 

[FarmerJ]

Im sort of wondering did the guy you bought this land from buy his land before there was a HOA in that so called subdivision and wondering how the HOA came to own the land you have been crossing? No matter what though you need the help of a real estate atty since you have been using it that long now I have a hard time seeing you not being able to continue using it but do get help!

 

[jtay]

More information

Thanks for the responses. I'm still researching answers but here's what I can tell you so far:

1. Easement grantor (Mr. A) was in/under HOA when he sold land to me and granted easement to me (1976). (details in previous post by me)
2. Covenants at formation of the HOA (1967) read: "All lots of this plat shall be used for residential, camping or recreational purposes only." [No mention of easements except utility easements reserved non-exclusively.]
3. Mr. A sold lot 3 (my access lot) in HOA to another private party at some point. (Will require a trip to courthouse to get detail.) Regardless, a private party, Mr. B, sold lot 3 back to the HOA in 2001. (I think the HOA wanted to build a water tower and the narrow lot was cheap -- speculation.) The Deed between the HOA and Mr. B reads: "SUBJECT TO: Conditions, Restrictions, Reservations, Covenants and Easements of Record."
4. The Real Estate Contract between Mr. B and the HOA in 2001 reads: "The property is subject to encumbrances including the following listed tenancies, easements, ... etc." None are listed. Looks like boilerplate only. Sounds like a defective title search.
5. I heard rumors several years ago that my "illegal" access would not allow room for the tower. Hearing this I provided a copy of my recorded easement, dates, stamps, recording numbers, seals and all, thinking this would be an end to the confusion. The President of the HOA, who happens to live next to lot 3, is the one who is most worried about my access, and keeps bringing up the validity of the easement.

Two issues complicate the picture:

My 17 acre forest has just been designated a "Stewardship Forest" by the state. It will eventually go to the Nature Conservancy. Thinking they would be happy about this resource, I gave the HOA a copy of our management plan, which includes a map of planned and existing trails, plant and wildlife species, silviculture plans (we thin once every decade anyway--logging trucks over lot 3 for a week or so) etc. In that document was mentioned the possibility of having small invited groups to help maintain trails, nature study, camping etc.

I'm confident that I won't lose access for myself, protected by prescriptive easement or laches, etc. However, I struggle with the interpretation of my "assigns" in the above context of the stewardship forest. As it is there are only 6 houses on the county road between the main highway and my driveway. Two are half a mile away, one is vacant and one is only intermittently occupied. Only two are primary residences, one being the HOA President's house. "Traffic" only worries him, not others that I am aware of.

The second issue, and the one precipitating this activity, was my request for a utility easement along an existing HOA utility easement to put overhead power underground. This is not for additional amperage, only to allow enough voltage to reach to the other side of the property (at best only 45 amps can make it that far, even with the easement). This would be across a different lot, currently owned by Freddie Mac, and would of course need to be approved by the lot owner. It's a 90 ft straight shot over unobstructed level ground. The Board nixed the idea on advice of their attorney, who offered them more explanation if they would pay him (which they didn't do). Their arguments justifying denial to me were of three types:
1. Increased traffic -- the extra 45 amps would increase the chance of big groups crossing the access easement.
2. I might use the extra 45 amps for commercial purposes, such as an auto repair shop or a bed and breakfast (that would increase traffic).
3. I have alternatives: a. multiple overhead wires (also needs utility easement, unnecessarily complex and won't come close to doing the job) b. come in from another development (over 1000 ft instead of 90 ft and also needs easement from other development)

From talking to three board members party to the discussion and decision, each was under the impression that a different lot was in question (3 board members, 3 lots), even though my written request that they were acting on had both HOA and Tax Parcel lot numbers for clarity!

As it is, those using the land are my family, uninvited HOA members, and strangers from outside the HOA. We have had 2 gates (on our land) torn down already and have now spent $4K putting another one up. There has been dumping, theft, and recently a new ATV trail cut through our property (We hate ATVs). The HOA president extended his yard into our forest until I called him on it. The VP has freely run his ATV through in the past. I have been "nice neighbor" in the past, welcoming and tolerating responsible use. I enjoy seeing the foot traffic.

The HOA's decision re the utility easement has an extremely minor effect on us. For us the bottom line is their trying to interfere with our usage of the property while the members (including officers) chronically have trespassed and abused our rights. As to the latter, in addition to the gate, I am thinking of granting access permission to the general public for a 24 hour period, then withdrawing that permission permanently except by written permission (to avoid claims of adverse possession or prescriptive access rights). Most of the neighbors are great and reasonable and I would like them to be able to enjoy this unique and valuable resource. However, it is my land and I must be able to decide how it is used and protected. I have started (nicely) turning neighbors off the land, urging them to discuss it with the HOA Board.

The more I walk through this myself, I'm thinking I should get an attorney to challenge the HOA to claim now what they think limits my access in view of the recorded easement, then challenge that claim if necessary. Their HOA President's repeated verbal claims are interfering with my enjoyment of the land.

Any suggestions would be sincerely appreciated. Thanks.

 

[TigerD]

You should probably have that sit down with a local real estate attorney. Logging trucks might be considered an impermissible expansion on the easement.

DC

 

[justalayman]

I'm confident that I won't lose access for myself, protected by prescriptive easement or laches, etc. However, I struggle with the interpretation of my "assigns" in the above context of the stewardship forest. As it is there are only 6 houses on the county road between the main highway and my driveway. Two are half a mile away, one is vacant and one is only intermittently occupied. Only two are primary residences, one being the HOA President's house. "Traffic" only worries him, not others that I am aware of.

assigns is a quite encompassing term. Basically, anybody you give rights to use your easement are your assigns.

the problem becomes with whether your intended use would be considered to be over burdening of the easement. Given it is a quite small easement, that alone suggests it was never intended to be used for large trucks and large numbers of people.

The second issue, and the one precipitating this activity, was my request for a utility easement along an existing HOA utility easement to put overhead power underground. This is not for additional amperage, only to allow enough voltage to reach to the other side of the property (at best only 45 amps can make it that far, even with the easement). This would be across a different lot, currently owned by Freddie Mac, and would of course need to be approved by the lot owner. It's a 90 ft straight shot over unobstructed level ground. The Board nixed the idea on advice of their attorney, who offered them more explanation if they would pay him (which they didn't do). Their arguments justifying denial to me were of three types:
1. Increased traffic -- the extra 45 amps would increase the chance of big groups crossing the access easement.
2. I might use the extra 45 amps for commercial purposes, such as an auto repair shop or a bed and breakfast (that would increase traffic).
3. I have alternatives: a. multiple overhead wires (also needs utility easement, unnecessarily complex and won't come close to doing the job) b. come in from another development (over 1000 ft instead of 90 ft and also needs easement from other development)

Your electrical argument makes no sense. "amps" don't reach anywhere. Amps are a measurement of amount of flow of electrical current. Amps are simply what a load draws. The only limitation on amperage would be the capacity of the wire itself. Try to draw too much current (amps) through a wire and it heats up.

You aren't likely to get any easements from a Freddie Mac owned property.

This is not for additional amperage, only to allow enough voltage to reach to the other side of the property (at best only 45 amps can make it that far, even with the easement).

do you currently have power on your property? Why not increase that service size?

but to say something like only 45 amps can make it that far, well, it doesn't make any sense. Not sure what you are really trying to say as the only thing that limits the current is the conductor size and overload protection rating. You will experience excessive voltage drop over a long distance if the system is not designed properly but what that would do is actually cause an increase current draw (amps).


but regarding the HOA's claim the owner could not grant an easement; tell them to provide documentation proving their claim. If it went to court, they would have to there so why not show it now?

The second issue, and the one precipitating this activity, was my request for a utility easement along an existing HOA utility easement to put overhead power underground. This is not for additional amperage, only to allow enough voltage to reach to the other side of the property (at best only 45 amps can make it that far, even with the easement).

you can run anything in the air that you can run underground.

3. I have alternatives: a. multiple overhead wires (also needs utility easement, unnecessarily complex and won't come close to doing the job) b. come in from another development (over 1000 ft instead of 90 ft and also needs easement from other development)

multiple wires? If you already have power, presumably there is already a utility easement. Unless there is a limitation within that easement, you do not need a modification of or additional easement.

but your argument of multiple conductors being unnecessarily complex or limited compared to an underground service is incorrect. Again, you can run anything in the air that you can run underground. It's all in the engineering. How much current do you think the power company runs across their single conductor (per phase) anywhere in the state?

what you need to do is run a distribution voltage the distance and install a transformer nearer to the point of use and step it down to standard end user voltages there.

 

[jtay]

electrical options

Thanks to justalayman for the quick and detailed response.

I confess that I'm not conversant with all the power engineering but I'm getting my information from the design engineer at the power company who has worked through all the options that he thinks are reasonable. He and I have spent a lot of time on the phone in the last 6 months going over options. While true some could go overhead in theory, there are 35 ft of dense huge trees at the property line, then my septic tank and drainfield, then my cabin, where the service drop is. In the past they used the trees overhead but now must use a pole and guy wires instead. They can't get a truck close enough to set a pole because they can't get around the septic/drainfield. Possible? Yes. Take out the septic/drainfield. Reasonable? No. The amps figure at the destination comes from the engineer and I confess I didn't follow the calculations entirely. I thought it was only IR drop affected by distance.

I believe when I had power first installed (around 1980), easements for primary service were not required. Now they are, except for eminent domain, which doesn't apply.

The width of the easement is narrow because the lot is pie-shaped, only 30 ft wide at the narrow end. It has handled logging trucks, concrete trucks, etc. fine in the past for specific projects (4 in 38 years). We come out maybe 15 times a year at most, averaged over those 38 years, more lately, though we are out of the country 3 months every year. The rest of the traffic is trespassers, which we hope to stop with yet another gate. Our burden on the easement I don't think is unreasonable. The land is recognized by county and state as forestland.

You're right about Freddie Mac; I tried. I think you're also right about challenging their claim about the easement.

 

[Dave1952]

When you obtained title to this land and the easement did you buy title insurance? Have you discussed this matter with them?