Washington Easement Law

An easement is a non-possessory right of use over the land of another.   Easements are typically granted for very specific and limited purposes.   Examples of easements include:

  • Right-of-way easements;
  • Utility easements;
  • Common driveway easements;
  • Solar easements;
  • Light and air easements; and
  • Conservation Easements

Affirmative Easements vs. Negative Easements

Easements are classified as either affirmative or negative.   Most easements are affirmative.   This means that the easement holder is allowed to use the property in a certain way.

Some easements are negative.   A negative easement prohibits a property owner from using land in a particular way.   An example of a negative easement would be a prohibition against building a structure that is taller than one story.   In modern residential real estate practice, rather than establishing negative easements, builders and developers create planned unit developments which are governed by Covenants, Conditions, and Restrictions (CC&R's).   The CC&R's set forth permissible and non-permissible uses of the homes and property in the development.

Establishing Easements in WA

Easements may be established in a number of ways.   The most common way of creating an easement is by deed or contract.   Such easements are known as express easements.

Easements may also be implied.   An implied easement is one which is not expressed in writing by the parties but rather is inferred from for their conduct and the circumstances surrounding the transaction.  Implied easements may be divided into two categories:

  • Implied Grant – A court will find an implied grant of an easement where at the time of the conveyance of the dominant tenement (the property that benefits from the easement), the necessity of the easement was apparent, continuous, and strictly necessary for the reasonable use and enjoyment of the dominant tenement.
  • Implied Reservation – An implied reservation of an easement will be found only if the grantor can prove that a the time of the conveyance, he was using the land is a manner consistent with the right he claims and that that burden was open, apparent, continuous, and strictly necessary to his reasonable use and enjoyment of the land he retained.    

An easement may also be established by prescription.   To establish an easement by prescription, a claimant must demonstrate that his use of the landowner's property was open, notorious, exclusive, and adverse and that his use continued for a period of fifteen years.   A use is considered adverse if is not with the consent or permission of the landowner and is not accompanied by any recognition on the part of the landowner.

Easement Legal Issues and Disputes

Easement disputes arise for a variety of reasons and can be very costly to resolve.   Examples of common easement issues involve:

  • Boundary Line Disputes;
  • Encroachments;
  • Abandonment;
  • Termination;
  • Misuse; and
  • Interference.

Help from a Real Estate Attorney in Washington

Easement disputes can be avoided by hiring a qualified real estate attorney who can review surveys and title searches to ascertain boundary lines and the location of improvements and existing easements.   If a dispute has already arisen, a real estate attorney can assist you in clarifying your legal rights and protecting your interests.

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