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Allison Peryea


As construction projects proliferate in the Pacific Northwest, it is not uncommon to have a construction site for a neighbor. Condominium communities adjacent to construction projects are often approached by project developers asking for boards to agree to construction easements or licenses. These agreements typically concern: 1) The passage of crane booms over existing communities; 2) the placement or installation of materials on the neighboring property; or 2) entry onto the neighboring property for the purpose of completing the project.


What’s an Easement or License?


An easement is a right to use or control land that belongs to someone else. An easement typically “runs with the land,” which means it does not terminate when involved property is transferred to someone else. In contrast, a license provides a personal right to use or control another’s land that usually terminates when the license-holder loses ownership of his property. Easements are usually recorded with the county to give public notice of the easement’s existence. Licenses are less frequently recorded.


Crane Swing Agreements


As a scan of the Seattle skyline attests, cranes can be a necessary element of large construction projects. Operation of cranes often requires them to pass in the airspace over neighboring properties. There are differing opinions whether a developer has a legal obligation to get your permission before swinging a crane boom over your property, and whether the neighboring property is entitled to compensation for allowing that activity. However, crane-swing agreements are still routinely made and money or other compensation is usually provided.


Shoring Agreements


Sometimes a developer desires to temporarily or permanently install encroachments on a neighbor’s property that are part of the shoring system of the development. For example, tieback systems involve driving rods or wires into the soil—often beyond a property’s boundaries—to hold up retaining walls. Sometimes these systems are designed to be temporary, meaning that the tension of the tiebacks is eventually released. But the components of the system remain in place even when the stress is taken off. Soldier piles and lagging is another common earth-retention technique. Soldier piles are vertical steel I-beams that hold back horizontal panels.


If a developer asks to install part of a shoring system on your property, you should consider asking for the developer to pay for you to hire geotechnical and structural engineers to determine that it would be safe and reasonable to allow this encroachment.


Access Agreements


Sometimes a developer may need to bring equipment or materials across your property to complete the project. These agreements are usually temporary, and terminate when the project is completed. In rarer cases, the developer may also grant your community an easement onto the new development property, such as by providing explicit authority to use walkways or driveways that are part of the new project.


Is Owner Approval Required?


An owner vote is probably not required for an association to enter into a construction easement or license agreement. Both the Condominium Act, at RCW 64.34.304(1)(i), and the Homeowners’ Association Act, at RCW 64.38.020(9), authorize a board to: “Grant easements, leases, licenses, and concessions through or over the common elements.” Per RCW 64.34.010(1), this authority extends to boards of condominiums created before the Condominium Act took effect. The exception is if the governing documents state otherwise; however, almost all declarations include similar or identical authorization language.


If there are concerns about owner disputes regarding such agreements, create an opportunity for owner input. However, avoid “advisory” owner votes, as they are often misinterpreted by owners as binding decisions. One option is to put the word out that the board is going to consider the matter and make a decision at the next meeting. Invite owners to notify the board if they have any questions or concerns, and let them know they are welcome to attend the meeting to learn about discuss the issues.


Why Should An Association Enter Into a Construction Agreement?


Usually, some type of compensation—typically money—is offered. But sometimes compensation takes other forms, such as a developer agreement to pay for a new fence or landscaping, or allow the association to keep encroachments such as buried retaining walls unearthed during the course of construction. There is no obligation to enter into an agreement, but sometimes it can be in an association’s best interest. For example, sometimes there is greater structural risk to a neighboring building if a shoring system is not permitted to encroach.


What Provisions Should be Included?


Be sure to read any proposed agreement before signing, and consider having your attorney review the agreement as well. (Indeed, the cost of having your attorney review and negotiate the agreements could also be covered by the developer per the agreement.) There should be provisions discussing the standard of care that must be used, and specific language addressing the scope of the easement or license. Agreements should include a provision holding the developer responsible for any damage that it may cause, and requiring it to indemnify the association. (This means it will pay for a defense and damages if a third party sues.) There should also be a requirement that the developer must carry insurance covering personal injuries and property damage, and must name the association as an “additional insured.” Agreements should also include a termination date, and language addressing what a party can do if the other party does something that is not allowed under the agreement. The exact figure provided in compensation is usually set forth in a separate agreement that is not recorded.


While construction agreements are not mandatory for neighbors to development projects, they can provide a mutually beneficial exchange of rights and compensation. But associations should be sure to take reasonable steps to protect their interests before signing on the dotted line.


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