Can one of several sites who share an easement use the easement for an adjoining site, that has its own prime access?
Kirkland, WA
Viewed 171 times.
Posted 10 months ago in Land Use / Zoning
Flag as objectionable
This question pertains to an easment that runs between two tracts that were being divided to create 9 sites. (today) The 1938 easement that was drafted to provide access for all of the resulting lots reads as follows:
Each lot description EXCEPT roads. Subject to easement over the south (or north) 10.46 feet of said premises and over other lands, for public thoroughfare to be knmown as Ohio Community "Drive to be maintained and controlled by the respective owners; together with the right to pass and repass ove asid public thoroughfaare and the right to cut and remove brush, trees and other obstructions which in the opinion f the grantees interfere with their ingress andegress; as granted to Geo. L. Bender, Laural. Bender, Clarle O. bender and Vivian faye bender, by instrument recorded under Auditor's file No. 3000167, records of King Coungy, Washington, which instrument provids: "The grantors shall make no use of the land occupied by said graantees except for a public thoroughfare to be known as 'Ohio Community Dirve' to be maintained and controlled by adjoining property owners according to foot frontage.--The covenants herein contained shall run with the land and are binding upon all subsequent owners therof." In the 70's the road was blocked near the middle, to prevent the nusance of through traffic, creating two dead end driveway easements. The north end seved 3 lots and the south 6. In 1980 a developer purchased the lot at the NE corner AND the site immediately north, which had no connection to the easement, to build a 27 unit apartment complex. That developer was bloced from using the easement as the only access to the two sites. Both sites fronted on the county road which provided excellent access. The developer finaly purchaced the right to use the easement from the neighbor to the south. Not well documented. but positively confirmed. The NE site was sold to the developer less the 10.46 feet that was subject to the easement. Recentyl the owner ot the SE corner site purchaced the site to the North of it. Again both sites have excellent access, in fact it is commercial property now. That owner sold to a developer who was encouraged by the City of Krkland to use the easement, which is now the driveway that serves 3-4 plexes and a triplex, as the only access for the 84 unit + 12,000 sq. ft. commercial space building. Their plan abandons access from the main street, so both sites must use the easement. None of the other easement owners were contacted or even notified of thisw intended change of use, by the City and only one, the SW corner was contacted by the developer requesting the use. The SW owner said no way! The City of Krikland approved their permit. 55% of the new developments site has no legal right to use the easement as its only access. As used now the load on the 20.92 foof easement is the equivelnt of 50 units. By abandoning their main accss and assuming the site to the SW corner does the same eventualy, the load will double to 105 units. (without the added load of the site Norht of the NW corner site. With that North site included the load will tripple to 160 units. No improvements were required and infact existing landscaping will be removed. To complicate matters the easement is an important Pedestrian Path between the two county streets that is heavily used. Is the use of the easement by the developer for the only access to the North site legal? At what point is it cleara that the use intended has over burdened the small easement? Since the owners of the easement have "controled" the use of the easement by blocking it in the 70's is it no longer a "public" throughfare and simply a private driveway.? Can the other owners of the easement block the intended use? Did the City of Krikland overstep its authority by "granting" the developer an easement over our property by giving them a permit to use it as thier only access? Isn't this "taking" for private gain? +$500,000 value. - Is this your question? Add additional information Answers (1)Roy Earl Morriss
This attorney is licensed in Washington.
Posted 10 months ago.
Flag as objectionable
That is quite a question! And not the sort of question which can be easily answered in this sort of forum - there are at least 20 questions I would want answers to, several documents which would need to be reviewed, City documents and codes which would need to be considered, etc. BUT, yes, from your description it sounds like the easement has been used and abused to the point where there are most likely valid legal challenges to its current uses. You really need to put as much information together as you can and have an experienced real property attorney take a look at it...and if you like I'd be happy to take a quick look at your documents, etc. I have over 25 years of experience in these types of situations - and this is the main focus of my practice.
|