1.0 Law & Legal CLE Credit A/V Approval # Recording Date November 1, 2017 Recording Availability June 12, 2018

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1 1.0 Law & Legal CLE Credit A/V Approval # Recording Date November 1, 2017 Recording Availability June 12, 2018 Meeting Location Date Time Topic King County Bar Association 1200 Fifth Avenue - Suite 700 Seattle, WA Wednesday, November 1, :00 PM to 1:15 PM Creating and Terminating Easements AGENDA 12:00 PM Introduction Changes to the KCBA Lawyer Referral Service 12:10 PM Presentation: Creating and Terminating Easements, by Larry Glosser, Ahlers & Cressman PLLC Basics of Easement Formation Examples of Various Types of Easements Drafting Reciprocal Easement Agreements for Commercial Developments. 1:15 PM Adjourn SPEAKER BIOGRAPHY Larry Glosser, Ahlers & Cressman PLLC - Larry Glosser is an attorney at Ahlers & Cressman PLLC in Seattle, Washington. Mr. Glosser focuses his practice on business and real estate transactions and litigation as well as creditor and debtor issues. His prior experience in the real estate industry as a broker, developer and manager gives Mr. Glosser a unique understanding of both the business and legal components of real estate cases. Today, Mr. Glosser is admitted to practice in the state courts of Washington, the U.S. District Court for the Western District of Washington and the U.S. Bankruptcy Court for the Western District of Washington. He belongs to professional organizations such as the King County Bar Association and the Washington State Bar Association, and American Bar Association. Eager to share his knowledge of the business, legal and real estate worlds with others, Mr. Glosser has given presentations for various organizations. He has spoken on business and real estate matters for groups such as the National Business Institute and Sterling Education Services. Larry Glosser was a charter attorney for the Housing Justice Project and served as a volunteer attorney for many years in King County Superior Court assisting low income tenants in landlord-tenant disputes. He has been designated as a Super Lawyer for Real Estate since 2014 and has an AVVO rating of 10.

2 HOW DO I EARN CREDIT FOR SELF-STUDY OR AUDIO/VISUAL (A/V) COURSES? For pre-recorded A/V (self-study) programs, although the sponsor should apply for accreditation, lawyers need to report the credits earned for taking the course. To add an approved course to your roster, follow the procedures below: Go to the "mywsba" website at Log in. Click on the "Access MCLE" link in the "MCLE Info" box on your home profile page. Click on "Add Activity." Search to find the approved course in our system. (See search suggestions on the screen.) Adding a Recorded Course Select Recorded Course from the Add New Activity screen. This will prompt you to search for the activity in case the activity has already been accredited in the MCLE system. You can search by Activity ID or by specific Activity Details. For the Activity Details search, you can use keywords for the title, sponsor name and date. After entering your search criteria and selecting Search at the bottom of the screen, a list of possible activities will be provided. You can select the correct one by clicking the Activity ID. This will take you to the specific activity. Entered the date(s) on which you began and ending viewing this recorded activity. Then claim the correct credits for which you attended this activity in the Credits Claimed fields and click the Submit button at the bottom of the page. You will receive a confirmation message at the top of your screen stating, The activity has been added to your roster.

3 EASEMENTS OVERVIEW OF SERVITUDES (EASEMENTS PROFITS COVENANTS) Overcoming Commercial Easements Problems

4 Interest in land, but NOT and estate in land. Bakke v. Columbia Valley Lumber Co. 49 Wn.2d 165, 298 P.2d 849 (1956). RIGHT TO USE LAND OF ANOTHER

5 WHAT IS AN EASEMENT? While an easement, which is a privilege to use another's land in a certain manner which must originate by grant or its equivalent, may be acquired by prescription (continuous adverse possession, which is open and notorious for a prescribed period, which is generally the period of the local statute of limitation applicable to real actions) the theory is that from such user it will be presumed that a grant was made. The presumption does not obtain, however, when the user originated through permission. In such case, the period for a prescriptive right will not commence until the permissive use becomes adverse; when the licensee's use becomes hostile to the licensor. Tiffany's Real Property, Vol. 4, 3d Ed., pages 558, 559.

6 Interest in land, but NOT and estate in land. Bakke v. Columbia Valley Lumber Co. 49 Wn.2d 165, 298 P.2d 849 (1956). An easement, although an incorporeal right, is an interest in land. Humphrey v. Krutz, 77 Wash. 152, 137 P A license, on the other hand, authorizes the doing of some act or series of acts on the land of another without passing an estate in the land and justifies the doing of an act or acts which would otherwise be a trespass. Conaway v. Time Oil Co., 34 Wash.2d 884, 210 P.2d 1012.

7 AFFIRMATIVE AND NEGATIVE EASEMENTS Affirmative easements grants owner of easements rights to use another s land. Negative Easements restrict the use of an owners land for the benefit of another.

8 APPURTENANT - GROSS An easement which by grant, reservation, or prescription is appurtenant to land is not a mere privilege to be enjoyed by the person to whom it is granted or by whom it is reserved. It passes by a deed of such person to his grantee and follows the land without any mention whatever. Winsten v. Prichard, 23 Wn.App. 428, 431, 597 P.2d 415, 416 (1979) Easement in Gross is personal right to use another s land and does not run with the land. More like license.

9 EASEMENT IN GROSS Created for the benefit of others who do not own the adjoining or attached lands. Adjoining landowner does not benefit. May have one or several servient tenements. Ex: A utility company obtains the right to run power lines across your land. Un-located or Blanket Easement means an owner gives the right to cross his property and does not limit how or where. If the prime beneficiary of the easement is another tract of land, regardless of who owns such tract, then the easement is appurtenant. 2 Thompson on Real Property s 321, at 57 (repl. 1961). Winsten v. Prichard 23 Wn.App. 428, 430, 597 P.2d 415, 416 (1979)

10 EASEMENT IN GROSS Utility easements are typically easements in gross Shopping center parking may be by easement

11 The questions as to when covenants do or do not run with the land, and whether easements are appurtenant or in gross, were among the most abstruse and technical questions of the common law. And when one goes to the earlier cases, he meets confusion and conflict. Many of the old doctrines have since been expressly overruled; others seem to be ignored; and more and more equity has come to enforce covenants which technically do not run with the land. It is well settled in law that easements in gross are not favored; and a very strong presumption exists in favor of construing easements as appurtenant. (Emphasis added.) Pioneer Sand & Gravel Co. v. Seattle Constr. & Dry Dock Co., 102 Wash. 608, 618, 173 P. 508 (1918). Kemery v. Mylroie 8 Wn.App. 344, 346, 506 P.2d 319, 320 (1973)

12 EASEMENT BY GRANT OR BY RESERVATION MUST BE IN WRITING To comply with the statute of frauds, "a contract or deed for the conveyance of land must contain a description of the land sufficiently definite to locate it without recourse to oral testimony, or else it must contain a reference to another instrument which does contain a sufficient description." Bigelow v. Mood, 56 Wash.2d 340, 341, 353 P.2d 429 (1960).

13 EASEMENT BY GRANT OR BY RESERVATION MUST BE IN WRITING However, in the case of an easement, a "deed [of easement ] is not required to establish the actual location of an easement, but is required to convey an easement " which encumbrances a specific servient estate. (Some italics ours.) Smith v. King, 27 Wash.App. 869, 871, 620 P.2d 542, 24 A.L.R.4th 1049 (1980) (citing cases). The servient estate must be sufficiently described. See Seattle v. Nazarenus, 60 Wash.2d 657, , 374 P.2d 1014 (1962).

14 EASEMENT BY GRANT OR BY RESERVATION MUST BE IN WRITING An easement may also be retained upon land by a person who conveys an estate in that land to another; a typical road example occurs when the owner of Parcel A and adjoining Parcel B conveys Parcel A to a grantee and retains a way across it to reach Parcel B. The law permits him to retain an easement in Parcel B, and the correct language to do so is, Grantor reserves an easement, etc. Sometimes deeds use the word except, but this word properly means to retain title to a strip or parcel of land, out of a larger parcel conveyed. It is imprecise drafting to use except in this context, though it is not fatal, as courts will read it to mean reserve. See Cowan v. Gladder, 120 Wash. 144, 206 P. 923 (1922); Pitman v. Sweeney, 34 Wn.App. 321, 661 P.2d 153 (1983).

15 EASEMENT BY PRESCRIPTION Shares elements of adverse possession. Adverse possession is claim to the fee simple interest in land, while prescriptive easement only attempts to acquire rights to use land of another. Necessary Period 10 years (differs by state); Use must be continuous and uninterrupted Notorious Exclusive Claim of right.

16 EASEMENTS BY NECESSITY Allows an owner of a landlocked parcel to cross over another's land to access a public road. Easements by necessity are known as appurtenant meaning they benefit a particular piece of land, rather than an individual person. Because they benefit the land, they run with the land. Running with the land means that the easements pass with the title to the land.

17 Fred owns a lakeside parcel of property, which he would like to divide and sell as subdivisions. He divides and sells the property to Alan and Beth in the following manner: In this case Alan will not be able to reasonably enjoy the use of his property unless he receives an easement to cross over Beth s land to access the roadways. Therefore, a court will infer an easement that is reasonably necessary to allow Alan's use and enjoyment of his property. For example, the court might infer that Alan has an easement to cross to the road via the path outlined in red.

18 IMPLIED EASEMENTS Even if an easement is not created expressly, it can be created by implication. If the circumstances surrounding a grant of property indicate that the grantor must have intended that a party retain or obtain an easement, a court can infer an easement even though the easement was not expressed. Created by Prior Use: If property that is owned by a single person is split by a grant of part of that property to someone else, or by grants of pieces of the property to different grantees, and it is apparent that an easement would be required for the continuing use of the property in the manner that is has been used until now an easement may be implied.

19 In order for an easement to be implied because of prior use, the following elements are required: The dominant tenement (Parcel A ) and the servient tenement (Parcel B) must have been owned by the same person. The prior use must be reasonably necessary for the use and enjoyment of the property. The prior use must have been continuous, not just sporadic, and must be active at the time that the property was transferred (ie. Owner must be using the path on a consistent basis at the time of the sale). The parties must have intended that the prior use should be allowed to continue after the transfer of the property. It must have been apparent to any observer that the use has been taking place. This does not mean that the transferee has to actually know about the use. It merely means that an observer watching the property would have observed the usage.

20 OTHER TYPES OF EASEMENTS Light and air easement is a type of negative easement. This easement prevents an adjoining land owner from building any structure that would obstruct the passage of light or air from reaching the dominant land. Avigation easement is an easement or right of overflight in the airspace above or in the vicinity of a particular property. This prevents the landowners near airports from building above a set height or requires the trimming of trees. Drainage easements are essential for controlling water runoff. The purpose of drainage easements is the orderly flow of water. Drainage easements impact homes through the restrictions imposed.

21 RECIPROCAL EASEMENT AGREEMENTS Typically, reciprocal easement agreements ("REAs") are used when a property is owned by more than one person or entity, and the persons or entities wish to develop the property as an integrated shopping center.

22 RECIPROCAL EASEMENT AGREEMENTS An REA might be a two-party agreement (i.e., between the developer and the major retailer) or a three or more party agreement (i.e., between the developer and multiple retailers). In addition, it is possible that an REA is entered into between two ore more property owners (neither or none of which is a retailer) that want to jointly develop their respective properties. This type of REA is less common and would deal with some but not all of the same issues as an REA between a developer and a major retailer. The typical two-party REA between a developer and a retailer would address the following issues.

23 1. Easements for Parking, Access, Encroachments and Utilities. The REA should provide both parties with the most basic rights for their respective properties to be operated in harmony with one another. Each party should have the right to access the other party's property for vehicular parking and access and for pedestrian access.

24 2. Construction and Architectural Compatibility The REA will typically provide for the developer to construct all of the on- and off-site improvements comprising the shopping center, as well as those relevant to buildings to be located on the developer s property.

25 3. Operation of Common Areas. The REA should provide for one party to operate, insure and maintain the common areas of the shopping center. The party with this responsibility would usually be the developer or a third party manager appointed by the developer.

26 4. Taxes, Building Maintenance and Building Insurance The REA typically requires each property owner to pay the property taxes that relate to its property. In addition, each party is also required to maintain the appearance of the buildings on its property in an attractive manner. Each party may also be required to maintain first party insurance on the buildings located on its property.

27 5. Use, Recapture Rights and Rights of First Offer Some REAs may require the major retailer to use its property for a particular use or, in turn, may restrict certain uses on the developer property to the benefit of the major retailer. In the event that the major retailer is required to use its property for a particular use and then ceases to do so for a specified period of time (usually six months, but subject to extension for remodels, casualties or other events outside the control of the major retailer), the developer may be given the right to purchase the major retailer's property for its fair market value.

28 6. Covenants Running with the Land, Term and Amendments The REA should specifically provide that the rights and obligations set forth in the REA "run" with the land of the property subject to the REA. In other words, whoever owns the property subject to the REA will be subject to the terms and provisions set forth in the REA. In addition, the REA should specifically provide for the term of the REA and the method by which the REA may be amended.

29 7. Mortgagee Protection Provisions The REA should contain provisions for the benefit of the lender of either party to the REA. In the event of a default by one party to the REA, the non-defaulting party should be obligated to notify the defaulting party s lender, if known, and allow such lender to cure the default.