§ 8.6 - Timber Deeds and Timber Reservations

JurisdictionWashington

§8.6 TIMBER DEEDS AND TIMBER RESERVATIONS

The conveyance of standing timber separately from the timberland on which it grows is properly accomplished by a timber deed or timber reservation. See Hoglund v. Omak Wood Prods., Inc., 81 Wn.App. 501, 914 P.2d 1197, review denied, 130 Wn.2d 1018 (1996). Such a conveyance is a conveyance of realty. Id.

A timber deed is a present conveyance of timber on, or a continuing right to cut and remove timber from, specified real property. A timber reservation, on the other hand, is the exclusion (whether phrased as a reservation or an exception) of rights to cut and remove timber from the rights conveyed by a deed. Under a timber deed, the grantee obtains some or all of the rights and obligations relating to timber (but not the fee). Under a timber reservation, however, the grantor retains the timber.

Timber deeds normally are executed only by the grantor. For purposes of this discussion, however, any contract or other document separating ownership of timber from ownership of underlying land with no further payment by the timber owner to the fee owner (except reimbursement for taxes and other expenses associated with the timber) is considered a timber deed.

Comment: Unless they have authority to convey the fee or specific authority to convey timber, persons managing property on behalf of a business entity or marital community should not be deemed to have authority to sell timber constituting a substantial portion of the value of the fee. Neither should they be able to grant a long-term (e.g., 50-year) timber deed even when the property then has no merchantable timber. A short-term sale of timber having limited value, however, may be a normal and prudent step in managing property. Such sales should be enforceable as between the parties if signed by someone having apparent authority to make other management decisions having a comparable economic effect.

Timber deeds and timber sale contracts are governed by the provisions of the Uniform Commercial Code. See Syrovy v. Alpine Res., Inc., 122 Wn.2d 544, 549, 859 P.2d 51 (1993); RCW 62A.2-107(2).

A brief checklist for drafting timber deeds and reservations is included as Form 8-1 on the CD accompanying this deskbook. In addition, the following discussion provides additional detail.

(1) Legal description

The timber deed should describe the lands affected by a legal description meeting the standards applicable to other deeds.

Practice Tip: A timber deed is a cloud on the title of all lands covered by the legal description, even though it may convey only the timber within certain smaller areas. Thus, it is customary to draft the legal description to cover the smallest area that can be conveniently described yet still cover the timber being sold. If a person wants to sell an odd-shaped stand of timber and then to sell, develop, or encumber the remainder of the property during the term, the seller should consider a survey to avoid the need to describe "extra" land in the timber deed.

(2) The timber covered

The timber covered by the conveyance or reservation should be described carefully. Not all the timber on the specified lands need be conveyed (or reserved) as long as the timber covered actually is identifiable. There could be a conveyance of all timber of particular sizes or species, or of all timber within certain stands if the boundaries are clearly identifiable on inspection. Absent provisions limiting the timber covered to a particular species or size or to timber that is merchantable, a timber deed covers all timber, live and dead, standing and down, merchantable and unmerchantable. See McKillop v. Crown Zellerbach, Inc., 46 Wn.App. 870, 733 P.2d 559, review denied, 108 Wn.2d 1015 (1987) (timber reservation regarding "all of the timber"); see also Hoglund v. Omak Wood Prods. Inc., 81 Wn.App. 501, 914 P.2d 1197, review denied, 130 Wn.2d 1018 (1996) (timber reservation regarding "all of the timber").

Comment: Although many cases in other states construe conveyances of "merchantable timber," Washington courts have not squarely addressed this issue. But see Syrovy v. Alpine Res Inc., 68 Wn.App. 35, 40, 841 P.2d 1279 (1992), and aff'd, 122 Wn.2d 544 (1993) ("Merchantable in the timber industry means suitable for lumber or having commercial value"). "Merchantable timber" should be interpreted in light of industry practice in the area at the time of conveyance regarding similar timber. In portions of eastern Washington where selective harvest has been customary, conveyances of merchantable timber probably are intended to refer to those trees that would be harvested under the standards prevailing in the area at the time of conveyance. These standards could be established by expert testimony. Where clear cutting is customary merchantable generally should be interpreted to refer to all stands of timber that are merchantable at the time of harvest, regardless of whether they were merchantable at the time of conveyance. Any areas where harvest was not intended could have been excluded from the legal description or by excluding identifiable stands; presumably the fee owner accepted the possibility of receiving the land with no vegetation at the end of the term. Therefore, allowing the timber owner to harvest any stands that become merchantable during the term reflects the most likely intent, unless a contrary intent is clearly expressed. See 54 C.J.S. Logs and Logging §15 (2005).

The fee owner will be considered to have retained any nontimber vegetation; therefore, the fee owner may graze livestock, harvest ferns, shrubs, berries, etc. as long as the fee owner does not unreasonably damage the timber or interfere with its removal.

Practice Tip: Use of the term merchantable to define
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