by: Patrick A. Randolph, Jr.
Professor of Law
UMKC School of Law
randolphp@umkc.edu

EASEMENTS; TERMINATION; IMPLIED EASEMENTS: Implied easement that arose upon severance of the property is not extinguished because it is not recorded or referenced in subsequent conveyance documents where the purchaser has knowledge sufficient to cause a prudent person to make inquiry. Fossum Orchards v. Pugsley, 892 P.2d 1095 (Wash. App. Div. 3 1995). Owners of lots that had originally been part of one parcel disputed existence of easement over two owners' property for irrigation pipeline to third parcel. Court held that original vendors and their purchasers intended to create an implied easement for the benefit of the third lot and that the easement was not extinguished when not recorded or referenced in subsequent conveyance documents. No Washington case appears to have addressed the question of whether a purchaser of land without notice takes free of an easement by implication, and the court acknowledged that there is a split of authority in other jurisdictions, citing 174 A.L.R. 1241 (1948). The court, however, found that Washington case law does recognize circumstances in which a party will not be a good faith purchaser without notice where such party has sufficient knowledge to cause a prudent person to make inquiry. In this case, the court found that the property owners contesting the easement had sufficient notice to be charged with knowledge of the easement.

Comment: Too bad the court didn't get to the principle issue. In the editor's view, an unrecorded and invisible easement by implication should be cut off by a good faith purchaser. After all, the concept of the easement by implication is that the parties intended it but did not write it into the documents. The "grantee" of such an easement has already received a benefit by a doctrine which skirts the Statute of Frauds, but should not receive a double benefit by cutting off an innocent purchaser who has relied upon a clean record. Of course, the situation is different when the purchaser is not innocent because there is physical evidence of the easement's existence. The editor also would not necessarily apply the same thinking to easements by necessity, which are creatures of policy rather than of implied contract.

Items in the Daily Development section generally are extracted from the Quarterly Report on Developments in Real Estate Law, published by the ABA Section on Real Property, Probate & Trust Law. Subscriptions to the Quarterly Report are available to Section members only. The cost is nominal. For the last five years, these Reports annually have been collated, updated, indexed and bound into the Annual Survey of Developments in Real Estate Law, volumes 1-5, published by the ABA Press. The Annual Survey volumes are available for sale to the public. Contact Shawn Kaminsky at the ABA. (312) 988 5260.

Items reported here and in the ABA publications are for general information purposes only and should not be relied upon in the course of representation or in the forming of decisions in legal matters. Accuracy of data and opinions expressed are the sole responsibility of the DIRT editor and are in no sense the publication of the ABA.