Tossing a grenade of entitlement.

The community we live in sprung forth from a large piece of land in the City of Seattle. The plat was sold to a developer know as Build Urban. The owner of Build Urban (Edson Gallaudet) did what was common at the time and left the old structure on the front of the property and built new homes in back. The old structure was made into two attached townhouses. Five new standalone homes were built on the back of the plat. Easements were put into place for a driveway and parking among other things. Here is an image of the plat, easements, and the homes on it:

The five new homes sold fast. My husband and I were the first to close on ours. The other properties sold and closed in short order. The revamped duplex was sold to an investor as rentals and the new homes to people who lived in them. As soon as we moved into our new home, my husband and I set out to build a sense of community within the plat and the surrounding city block. We hosted an open house one evening for the block and it was a smashing success. The highlight for me was the little old woman from across the street who had brought over a single rose for “the lady of the house.” Her son smiled knowingly at me. It took her a bit but she finally realized there was no “lady of the house” and handed me the rose with a smile and told me to put it in water. She was frail but there was nothing stopping her from coming to this party or climbing to the third floor to see the view of Seattle! She had placed the flyer by her chair and spoke of the upcoming party daily. I smile thinking about her… May she rest in peace.

We were also pleasantly surprised to learn the new homes on the back of the plat won this award from Professional Builder in 2014:

One night I took the trash out to the enclosure on the front of the property. As I was walking out, I saw two people create an intentional commotion as they darted behind trash and recycle receptacles at the end of the driveway. I very loudly let them know I had witnessed the commotion, which was obviously intended for me, by asking “Can I help you?” They giggled like school children and acknowledged their odd behavior and stated they were thinking about buying one of the townhouses in the duplex. That was how I met Drew Gillespie and Katie Ward. The name Drew Gillespie may sound familiar to some of you in Seattle. Drew is the owner of Pike Brewing Company in Pike Place Market.

Drew and Kate did buy one of the attached townhomes. The other one was sold to Kate’s sister Emily Ascolese and her husband Patrick Ascolese. This arrangement seemed odd to me from the go… Most people would not buy a home on the same block as their family members. These sisters and their husbands are only separated by a wall between the two families.

Immediately after Drew, Kate, Emily and Patrick moved in, the neighbors and I started growing concerned about the state of the property. To me it looked like a dumpster had exploded on the front of our property. Each time I left or came home I had to see the mess these people had created. Everyone visiting commented about how bad it looked. I was told by one of my neighbors Sheri Kersch, the wife of Howard Schultz, even commented on how she loved everything about the property except the duplex and how hideous it was out front as she came down the driveway.

All of our reluctance about our new neighbors was confirmed on Sunday, April 24, 2016 at 2:59 PM when the email below arrived. In the email Drew, Kate, Emily and Patrick told all of the other property owners on the plat they were going to build over an easement. In that same email they told all of us they had consulted a lawyer about doing so. They also acknowledged they would be making my parking spot fundamentally unusable buy saying “We do recognize the situation is not ideal for the current assignee of Pad E…” Um, I’m not the ‘assignee’ I’m the owner. What this email made apparent to me is they simply didn’t care about the legal implications they had just thrust upon the rest of the community. These people were going to do what they were going to do no matter what.

Drew, Kate, Emily and Patrick exercised an act of pure entitlement IMO. They were entitled to do whatever they saw fit, including building over the easement and making my parking spot unusable. The email they sent is no work of literary genius but I honestly believe it was sent to trigger a lawsuit. I believe nobody in their right mind would move into a community and send an email like this unless they wanted to trigger a lawsuit. Here is the grenade of entitlement they tossed at their neighbors in the form of an email in its entirety:

Dear Vxxxx, Lxxxx, Nxxxx, Rxxxx, Bxxxx, Bxxxx, Kxxxx, Bxxxx and Paul, 

We gather some of you may be unhappy that we didn’t share our plans for our side yard ahead of time. We didn’t intend to offend anyone and we really do care about having a good relationship with all of you, so we’d like to go ahead and share the rest of our plans with you now.

Apologies that this email is very long, this topic is very important and unfortunately can’t be summed up in just a few words!  Thank you for reading this far, we humbly request that you set aside 15 to 20 minutes to read it’s entirety, whenever you have it to spare.

As most of you are probably aware, we have already made significant investments in remodeling, updating, improving and beautifying the interiors of both of our homes, which are noted as Lot A and Lot B in the CC&R documentation.  We bought these homes because of their potential, and because we want to grow our families together over the long term (Emily and Katie are sisters).  From the very beginning we’ve intended to do a significant overhaul of the exterior, improving it, beautifying it and making it a safe, comfortable place to raise our kids and to share with our friends and neighbors.  We are completely aware that it looks awful right now; that really bothers us too and we are ready to start the makeover of our southern area, west of the trash enclosure.

We understand there may be some confusion about the state of the easements, and which areas of our property require participation from various parties and which don’t.  This confusion is common, and the CC&Rs and easements for this subdivision happen to be documented particularly poorly.  The simple fact is that the as-built reality of the property does not, and never has, matched the descriptions and maps attached to the CC&R.  They are inaccurate.  We, and our counsel, have searched diligently for up to date drawings but they are not recorded anywhere with the city or county.  We’ve pulled the recorded ‘plat’, which is considered the most accurate legal property description available, and is the origin of the map used in the CC&R. We were hoping it would’ve been updated, but sadly it contains the exact same ‘pre-built’ drawings.  At least it’s higher resolution and actually readable!  The only difference is that the CC&R copy delineates the parking pads by lot assignment.  It’s in everyone’s best interest to get these docs clarified and updated so that we can all live our lives free of ambiguity and confusion.  We will touch on this matter again later in this email.

The project:

Our plan is to construct a beautiful fence between our yard and the shared easement driveway, as well as a second story deck around the foot of the ‘L’ of our home.  Images are attached for clarity.  The major goals of the project are as follows

  • Create an enclosed, inviting, safe, comfortable and secure environment for our children to play and grow in, and for us to enjoy.  We currently live in an active parking lot and are genuinely worried about our child’s safety.
  • Provide more privacy for everyone.
  • Provide an outside covered area that we can use in the rainier months.
  • Create a beautiful and inviting front entry way for Lot B.  Right now no one knows where our front door is, and we live ‘under the stairs’.  It’s ugly and uncomfortable. 
  • Eliminate both parking pads and turn the entirety of the area into enclosed living space / yard.
  • Divert the gutters to direct water away from the shared driveway

The fence will run westward from the edge of the short retaining wall to the corner of the gray tiles, where it will turn right and connect to the southwest corner of our home.  The stairs on the side of our home will be removed and will be replaced with a waterproof deck starting at the east edge of the stairs, and will wrap around the south west part of the home. (See attached Plan.PNG)

With regards to easements we know there will be some questions about the project.  We purchased the home based on a specific interpretation of the as-built realities. We’ve discussed the interpretation with our legal counsel and continue to believe it’s accurate.  But before we get there we want to discuss why we think this work is good for all of you as well:

  • This work will improve everyone’s property values
  • The whole of the subdivision will be substantially beautified, from both curbside and townhouse side
  • Diverting the gutters to drain elsewhere could reduce some stress on the porous driveway covering
  • Privacy absolutely makes for stronger neighbor relationships
  • Two less cars in the driveway

We hope that sounds great to all of you!  We would definitely like to enjoy a summer drink and meal with all of you on the deck, and a warm tea or hot toddy under it in the winter!

A rough description of the project is shown in the attachment ‘Plan.PNG’

On the Easements and CC&Rs:

Yes, we need to talk about the state of the easement and CC&Rs.  The attachments will do most of the talking here but we’ll try to be as concise as possible.  

The attachment ‘RecordedPlat.PNG’ shows the status of the entire property as is recorded in both the short plat and the CC&Rs.   For convenience ‘EasmentsAsDrawn.PNG’ is the same doc with the as-drawn easements colored.  The important thing to note is that this was recorded before the property was constructed.   We saw this before purchasing, and were assured that the as-built factors supersede, as is common in easement practice, and that this view is bolstered because the easements have in fact never physically existed as drawn.

Our interpretation has always been, and continues to be, that the garbage area, upon being built in it’s currently location permanently nullifies and invalidates the easement directly to the southwest of Lot B.  The as-built location of the trash, and the (never recorded) short retaining wall to it’s west directly impact the placements of Pad A, and thus also Pad B.  We have legal confirmation that our interpretation of Pads A and B being shifted west is in fact correct and appropriate and we do not simply lose our parking pads because the trash was built somewhere else.   Section 4.5 of the CC&R allows that we may park in the area to north of Pads A and B but does not indicate that we are required to.  See attachment ‘LotFeaturesAsBuilt.png’.

Pad E exists entirely within the real property of Lot B, therefore we maintain that our responsibility as the servient party to provide ingress, egress and parking remains fully satisfied, and continues to be satisfied when we build the deck and fence, as shown in Plan.PNG.  The as-drawn area of the trash could never have been intended for ingress and egress because had the structure been built there, no means of passage would’ve been possible.  See attachment ‘AsDrawnSuperImposedOnAsBuilt.PNG’.  

We do recognize the situation is not ideal for the current assignee of Pad E, Drinkwine and Reed, so we would like to inform them that Newhart has already confirmed for us that they are amenable to swapping spots.  Such a change is allowed in by section 4.5 of CC&R section and does not require agreement from other parties.

Please view all of the attached documentation.  There are multiple images showing the as recorded plot and the easements as drawn, markups of the actual locations of the property features as-built, Lot A and B’s full property lines without easement and markup showing the as-drawn and as-built features superimposed on top of one another.  

In a nutshell:

When considering the recorded documentation and the as-built realities together it is plainly obvious that respecting both simultaneously would indicate acceptance that A and B have given up private land usage rights for two garbage enclosures, and have lost at least an entire parking spot.  We do not agree with that interpretation, we were told this wasn’t the case when we purchased the home, and is supported by our legal counsel. 

Our parking pads, the trash, and the short wall were not built as-drawn, but where they exist defines the usage rights. This fact is supported by Section 5 of the CC&R.  

The parking situation continued:

We also recognize that there may be some confusion about why we generally don’t use our Parking Pads, but lately have been.  As mentioned above, we generally don’t like to park in the driveway, and in the long run we won’t.  Unfortunately, Patrick’s vehicle has been hit twice while parked on the street in the very short time we’ve lived here.  This has prompted both Katie and Patrick to park off the street more often.  Because the Pads are contained entirely within our property and are not subject to easement with respect to modification we are entitled to change their purpose at any time without input from the rest of town homes, including construction within their footprints.

The Garden Boxes:

There was recently an assertion made that the area to the east of the trash enclosure, where the new garden boxes have been built, is subject to easement.  That is incorrect. That area is the unambiguous private property of Lot A, as described in the plat, and is reinforced in section 8 of the CC&Rs, which explicitly states that Lot A grants a 3’x3’ easement in that area to the rest of the units for the shared mailbox.

In closing:

As is likely clear by now, we are intimately familiar with both the CC&Rs and the plat, as is our counsel.  We truly hope you all believe we are trying our best to be open, honest, and transparent with everyone.  We really want what’s best for our family and care about the community as a whole.

We would love to hear from you folks and get your thoughts on this matter.  We are happy to discuss in more detail, but for the sake of everyone involved we don’t want this email thread to turn into a forum for arguing.  If you have feedback, comments or questions please include direct references to sections of the CC&R and/or plat documentation.  

We are happy to have everyone over sometime to talk face to face and go over the documentation, individually or as a group, if that’s what people want.  Without being told explicitly we aren’t going to assume that the occupants of any particular unit speak for any other, so please contact us if you want us to know what you are thinking.

Our goal, after hearing your feedback, is to amend the CC&R as to eliminate further ambiguity.

Cheers, and thank you all so much for taking the time.


Patrick, Emily, Drew and Katie