Zunino v. Rajewski, Ct. of Appeals Case No. 25087-3-III (Sept. 8, 2007) (slip opinion)*

* This post is published here under the Creative Commons License. The post was authored by Keith Ganey and originally published to his blog at http://www.walaw.org. Ganey is a 2008 graduate of the University of Washington School of Law.

Go to Slip Opinion

Summary

A seller of property may not reserve easements without noting them on the deed. A clean deed supersedes any previous recordings of easements.

Discussion

Defects in the land subdivision process may be invisible as plumbing mistakes to untrained eyes, but both are disastrous headaches when they finally make themselves known. Here the latent defect was literally invisible; the divider failed to properly secure access easements for new purchasers across the older tracts.

Gayle Anderberg sought to divide up her farm and sell it as residential properties. By selling the land in 10-acre lots with access easements on file with the county, she effectively avoided the county’s formal land-use process. Gayle filed the easement forms with the county with the help of a friend who worked at the Spokane County Building and Planning Department. The easements accomplished her goal of avoiding county oversight, but failed to ever become legally binding.

The easements failed to materialize for two reasons:

(1) The Documents Contained the Wrong Language 

The mistaken word on the easements appears to be the use of “was” where “is” should have been. Each easement document states “this easement was created as . . . .” By using “was” the document implies that the easement existed before the document instead of being created by the document. 

In legal terms, the easement filing failed to establish a “present intent to transfer an interest in land” because the wording referred to a past, not present, event.

 (2) The Easements Were Not Disclosed To Purchasers 

All of the easement agreements were made before Ms. Anderberg sold any of her property, but none of the deeds made any mention of the easements. If the deeds had simply mentioned the easements, they might have cured the defective original filings.

Denying the access easements does not strand the current owners of Ms. Anderberg’s property. They retain the right to access their acreage by a state route and in a manner consistent with farm use.