easement

Washington State. I've just been sent a copy of a 1939 warranty deed giving someone the right of way to access there property behind me, it is a christmas tree farm. I have been letting the family into the farm without any problems. Now it appears they want to build a few houses on the property. for 70 yrs it has been access to the tree farm, is there anything I can do? Can I only limit access to the names on the 1939 easement

Wash is a race-notice state. Huh? you say.

Race-Notice means that, where 2 deeds conflict, the first to record takes precedence. Also, if you do not have actual or constructive notice of an easement, the easement is extinguished when you record your deed.

Here's how that works out in your case.

1) if the title search & record do not reveal anything suggesting that an easement exists (plat maps, surveys, recorded titles), and you purchased the property before the easement deed was recorded, the easement was extinguished when you recorded your deed. No notice = no easement. You have to sue to quiet title to your land.

2) if anything suggested the existence of an easement, "such that a reasonable purchaser would have been put on notice of a possible easement and investigated further," then you have to allow the easement. The tree farm owners have to sue to enforce the easement and win.

Your situation appears to resemble #2, in that you admit you knew that the tree farm people got onto their property by going over yours. OTOH, if your seller indicated that this use was permissive and not a formal easement, you may be able to argue that you made reasonable investigation and found no easement. (I doubt this flies, as you probably should have talked to the tree farm owners.)

Your options:
1) Read their warranty deed carefully. See if it limits the use of the access road to X number of vehicles/wagons per day and no more, or if it is in effect only for so long as the land is used as a tree farm. (Doubtful.) If there are no limitations, "reasonable and forseeable" intensification of easement use is allowed. Subdevelopment and paving the road are forseeable.

2) WA has this wonderful(!) law called the Growth Management Act. (Also known and the full employment act for land use and environmental lawyers. ) The GMA allows dense development (usually more than 1 house per 5 acres) only inside of designated urban growth areas. The proposed development may not be allowed under the GMA.

3) Check the zoning on the farmland. If it's agricultural, you need about 20 acres per house. Spot rezoning to allow denser development is unconstitutional in WA. Hire a lawyer to fight attempts to rezone.

4) Call your water association and see if there are extra water shares available. If not, the farm owners will have to drill wells, and may not hit potable water, limiting development.

5) Call your title insurance company and intiate a claim. Doubtful. ::Rocky the Squirrel voice:: THAT trick NEver works.

6) Examine your deed. Is it a warranty, statutory, or quitclaim deed? If it's not a quitclaim, you may be able to sue the seller (who will sue his seller, etc, until the original twit who granted an easement and didn't record it pays).

7) Examine their warranty deed and make sure it was properly executed. If it lacks a legal description or was executed improperly, it's void.

8) Buy the easement back, paying enough money for the farm owners to buy a road access easement from another neighbor. (Your legal fees for fighting the eaasement will be high, so explore this option first. It may be cheaper or not much nore expensive than what you pay the lawyer.)

Find a real estate lawyer and ask her these and other questions. Take all your info with you.

Good luck,
Tracey


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This is not legal advice and you are not my client. Double check everything with your own attorney and your state's laws.

[This message has been edited by Tracey (edited April 06, 2000).]