Determining Whether the Scope or Use of an Easement has Changed: New WA Case

Under a very general definition, an easement is an interest in land, obtained from land that is owned by someone else. An easement interest is usually the right to use another's land for a limited purpose; like the right for ingress or egress (i.e. a right-of-way or a driveway). If the easement is an express agreement (in writing) then the dominant estate (the one entitled to the right to use) can usually uphold enforcement of the agreement, so long as they do not exceed the scope of the easement's rights.

Determining the scope of the easement, is usually found within the terms of the easement or parties' written agreement. However, some agreements may be silent as to use or scope, so the intent or the scope can sometimes be called into question.

Division III of the Washington Court of Appeals issued an opinion today, that called into question the intent and scope of an express easement between two landowners. The case in question can be found here: Wilson & Son Ranch, LLC v. Phillip Hintz, et ux. The main issue in this case was to determine whether or not the dominant estate was exceeding the scope of the easement.

According to the facts of the case, the Hintzes had used their property for years as a fish hatchery. However, in 2001, the Hintzes began using the property as outdoor event venue, such as hosting weddings. As imaginable, it appears an increase of traffic was created along the driveway for use as a wedding venue - and thus led to the neighbors being upset and filing this lawsuit.

The decision as to the scope and use of the easement ultimately came down to a reasonableness standard. The court held that the use was not an "unreasonable deviation" from the original grant of the easement, and thus, the Hintzes' were permitted to keep using the driveway for wedding venues and events.

New Adverse Possession Law in Washington

This is rather big news for real estate attorneys in Washington. As of July of this year, there will be a new law on the books in Washington that will potentially allow attorney's fees to the prevailing party in adverse possession cases. HB 1026 (RCW 7.28), which was recently passed, will go into affect in July, but will only be applicable to cases filed on or after July 1, 2012. So, if you are considering filing an adverse possession case, you may want to wait until next year. The other thing to keep in mind is that attorney’s fees will not be mandatory under the new law.

A brief summary of the new law is as follows:

Permits a court to decide that a party who prevails on an adverse possession claim must pay certain taxes levied on the property that were paid by another party or that went unpaid.

Allows a court to award costs and reasonable attorneys' fees to the prevailing party in an action asserting title to real property by adverse possession if the court decides such an award is equitable and just.

The actual attorney’s fees provision reads as follows:

“(3) The prevailing party in an action asserting title to real property by adverse possession may request the court to award costs and reasonable attorneys' fees. The court may award all or a portion of costs and reasonable attorneys' fees to the prevailing party if, after considering all the facts, the court determines such an award is equitable and just.”

If you are unfamiliar with adverse possession, and happen to find yourself in a boundary line dispute with a neighbor you will want to contact a real estate attorney. In the most simplest of explanations, adverse possession can allow another to take ownership of property if they use the property for a period of over ten years, without the true owner making a claim or granting permission of the use. In general terms, in order to establish a claim to property by adverse possession, the claimant must establish open use, continuous use (10 years), exclusive use (keep others out), adverse use (no permission) and notorious use (known to others). Chaplin v. Sanders, 100 Wn. P.2d 853,676 P.2d 431(1984). In determining your property rights you should consider consulting with a real estate attorney.

Who Has to Pay for Unforeseen Project Expenses in Construction Projects?

The (Tacoma) News Tribune released a story today about cost overruns and "unforeseen" project expenses for the newly renovated Cheney Stadium. Apparently, after much praise regarding the project and the success of timely completion, the city of Tacoma is now faced with a demand by the builder for an additional $821,000 in "unforeseen site-related expenses." Unfortunately, in the construction field this is an all-too-common circumstance of projects... which leads us to the question: who has to pay for the unforeseen project expenses in construction projects? The Owner? The Builder?

The answer to this question is usually found within the parties’ contract. [Side note: always have a contract, those handshake or verbal agreements are usually more likely to end up in a dispute – do not learn this the hard way]. Within Washington, the law is generally settled in that contracts are construed against the drafter and construction contracts are strictly construed against the builder; in that, if a builder agrees to construct a building for an agreed price he must do so at such price. This is essentially fundamental to contract law, and this principal was summed up by Judge Louis Brandeis in United States v. Spearin, 248 U.S. 132, 136, 39 S.Ct. 59 (1918), wherein he stated that “[w]here one agrees to do, for a fixed sum, a thing possible to be performed, he will not be excused or become entitled to additional compensation, because unforeseen difficulties are encountered.” As such, if a builder is to protect himself against difficulties in soil, weather, labor, unforeseen site-conditions, or other contingencies, he must do so in his contract.

As a contractor, you must be prepared for such contingencies arising and you must have a process for submitting change orders. An agreed upon change order is usually the only way that a contractor can seek additional compensation. This generally requires that the contractor provide notice to the owner upon discovering the unforeseen circumstance. These contingencies must also be something that was unexpected and not initially bid or anticipated by the contractor. Contracts require an element of good faith, and thus, a contractor cannot conjure up frivolous “unforeseen” circumstances. Any such dishonest act by the contractor may invoke a claim for a Consumer Protection Act violation (RCW 19.86).

Under Washington law, when a contractor submits a bid or agrees to do a job, he, in effect, represents that he will perform that job in a workmanlike manner, according to the specifications provided him, in the time stated, and for the price quoted. Eastlake Const. Co., Inc. v. Hess, 102 Wn.2d 30, 49, 686 P.2d 465 (1984). The contractor’s representations, in his estimate or bid, serve to induce potential purchasers in much the same way an advertisement or representation by a salesman would. Id. Thus, a contractor’s business practice of providing estimates to purchasers, with which he is unable to substantially comply due to reasons which should be reasonably foreseeable in light of the contractor’s knowledge and experience, is an “unfair or deceptive act or practice.” Anhold v. Daniels, 94 Wn.2d 40, 46, 614 P.2d 184 (1980).

Given the foregoing, it is clearly understandable why bidding a project is not an easy process for contractors. Building projects can take months if not years to complete. During such time, costs of labor and materials fluctuate. Weather is inconsistent. Subcontractors and material suppliers are not always on the same page with one another. Building fads change… and hence owners change their minds. Yet, all the while the general contractor must be fully prepared, upfront and in advance, for all such fluctuations and contingencies when bidding on a project. Thus, it is important for a contractor and an owner to have a game plan for these contingencies within their contract.