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Real Estate & Home

Different easements for different uses

12/6/2012 - West Side Leader
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By Tom Kelly

Gimme Shelter

More than 15 years ago, we bought a tiny rental property on a rolling knoll via a tax-deferred exchange. We didn’t really covet the home; it was simply a suitable replacement property or “place to land” so that we could defer the capital-gains tax on the sale of the first investment property — our one and only rental.

In fact, we didn’t really want to sell the first home, an older in-city Craftsman in a terrific location near several hospitals. However, a nonprofit group that we supported for years needed a home for some of its senior citizens and persuaded us to sell the place to accommodate the need. I scurried to find another property of equal or greater value to satisfy the requirements of the exchange.

My requirements were that any replacement property would stand a decent chance of appreciating, be within walking distance to a market and have at least a remote possibility of becoming our primary residence at some point down the road. The house we purchased in the exchange would never fit the final condition — it was a 1910 teardown (we called it a “fall down”) with a post-and-pillar foundation that had been braced, remodeled and dormered without much thought or quality.

Its secret sauce was the location, plus a recorded view easement that the original property owners established before subdividing the property in half. The view easement stated that nothing could be “constructed, installed or planted on a designated portion” of the neighboring property that would “restrict, or in any manner impair the view” from the property we purchased. The clause was inserted to keep the height of a huge laurel hedge near the property line under control.

Fast forward 15 years. Our four kids are grown and gone. We sold the primary residence where they were raised last year and have been renting a condo since then. Now, the owners want the condo back, and we have submitted plans to build a new little home on the rolling knoll.

After the initial plan review by the city’s engineering department, we were stunned to discover that our lot had no legal access to the street (an approximate 10-foot gap). Ironically, the easement we need for ingress and egress to the house is over the area adjacent to the laurel hedge that is included in the view easement. Since our driveway appears to abut the street and is separate from our neighbor’s driveway, the issue was never raised — until now.

According to the title company officer, our owners’ policy does not ensure access. Since we paid cash (via the exchange) and did not require a mortgage, the extended coverage required by a lender wasn’t needed. The title officer also said that the original owners probably did not know that both of their two subdivided lots did not have legal access to the street.

Although getting to the lot (it is at the end of a paved street) might not ever be in question because of the years of use, we will obtain a proper easement granting us, and any subsequent owners, legal access to the parcel.

An easement is “the right of a person, government agency or public utility company to use public or private land owned by another for a specific purpose. A grant of one or more of the property rights by the owner to, or for the use by, the public, a corporation or another person or entity.”

According to Rob Crichton, a real estate attorney, we have several options.

“A property cannot be landlocked,” Crichton said. “If you can prove that you are entitled to an easement, you would have to pay the fair value for the easement, which might be more expensive than another option.”

Another way for us to solidify the easement would be to obtain a prescriptive easement via a judicial proceeding, which is similar to obtaining property via adverse possession. Someone who uses another’s property may eventually gain ownership of the property (by adverse possession) or gain the right to use part of the property for a particular purpose (prescriptive easement).

To gain ownership of someone else’s land in our state, a trespasser “must occupy it hostilely, openly, exclusively and continuously” for a period of 10 years. Since the home has been there and occupied since 1910, that would be easy to prove.

It turns out there are renters in the neighboring parcel. I think I’ll track down the owners, send them an easement proposal and ask them to sign it in exchange for dinner for two at a local restaurant.

They will probably be surprised and think the deal’s a bargain. After all, I’ll be maintaining their huge laurel hedge.

 

Tom Kelly, former real estate editor for The Seattle Times, is a syndicated columnist and talk-show host.

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