Washington State Easement Laws Overview
Easements in Washington State are defined as the limited right to make use of another person’s land in a manner that is not inconsistent with the right of the owner; an easement thus constitutes a servitude on the land which may be owned by one person over the property of another. Easements may be created for almost any purpose, and are typically categorized according to the capacity of the party that owns that easement, the purpose for which that easement was created, and the manner of its creation . An easement may be created by express grant or reservation, implied grant or reservation, or prescriptive right. The rights of the easement holder are generally limited to the particular purposes for which the easement was granted or reserved, and they must not endanger the continued use of the property burdened by the easement. Easements can only be terminated in limited circumstances prescribed by statute or by agreement or operation of law.
Easement Types in Washington
The types of easements that Washington recognizes are: express easements, implied easements, prescriptive use easements and easements by necessity.
Express Easements: Express easements are the most common type. An express easement is an easement that is created by a document such as a deed. Generally, the deed must satisfy the requirements of Washington’s Statute of Frauds (RCW 64.04.010) which requires a deed to be in writing, signed by the grantor, attested to by at least one witness and, with limited exceptions, notarized.
An implied easement is one that exists outside of a deed. Implied easements can arise in a lot of different situations. The most common situation that leads to the creation of an implied easement is when a tract of land is sold by a developer and the tract of land that is sold has a well for water. The tract of land that was sold does not have a separate supply of water for domestic purposes, such as drinking. An easement by necessity is created because the tract of land that was sold by the developer has no other reasonable way to obtain water. In this situation, the tract of land that was sold has an equal right to the water as the tract of land that was sold. See Kachinski v. Soundcrest, Inc., 31 Wn. App. 773 (1972), for an example of this principle.
An easement by prescription is an easement that results from a long period of use of another person’s property. See Yeates v. Younger, 196 Wn. App. 479 (2017). In Washington, in order to get a prescriptive easement, the use must be open and notorious (one where the other person would see it if they were using reasonable care to do so), under a claim of right, continuous and uninterrupted, exclusive and not shared in common with the public or the owner of the land, and adverse to the landowner. See Sund v. Kost, 32 Wn.2d 964 (1949).
Ways to Create and File an Easement
Easements in Washington State can be created in a variety of ways. The simplest, and the way that most are created, is through a property deed or legal agreement between property owners. To be enforceable under Washington State law, an easement must be in writing. This formality is designed to protect the rights of property owners and ensures that easements are not created unintentionally. If these formalities are followed, the easement can then be recorded with the County Auditor’s Office. Using a case from 1927, the Washington Supreme Court has held that "easements are property rights." As such, an easement can be assigned or sold like any other piece of real estate. The statute of frauds, like other land title statutes, thus requires all transactions involving transferable rights in land to be in writing in order to protect subsequent purchasers and creditors against prior unrecorded transfers . . ." Kaiser Gypsum Co. v. Town of Concrete, 1 Wash.2d 72, 76, 95 P.2d 743 (Wash. 1939).
Easement Holder Obligations
A landowner with an easement has the right to use someone else’s land but also has a duty not to interfere with the rights of the underlying landowner. For example, if the easement is for driveway purposes, then any other use, such as parking, could be considered a trespass.
An easement holder in Washington State has the right to use the easement for its intended purpose, and to maintain the easement but not in a manner that would unreasonably burden the use of the underlying land. An easement also carries with it the right of access for the owner of a dominant estate, the right to act in case of an emergency and the right to trespass on the underlying land for the purposes of constructing and maintaining the easement; provided all activities are reasonable. Courts have held that an easement holder may construct trade fixtures or buildings along the easement even if on the surface estate. Further, an easement holder must keep the easement in good condition and control any overhanging branches and smear off any ice or snow that has deposited on the underlying land.
The easement holder must make no unnecessary repairs . The Washington State Supreme Court has held that if an easement terminates, then the easement rights are extinguished, and a holder of an easement for a particular purpose has the duty to make repairs that are necessary for that particular purpose but no more. Even though Washington law requires the holder of an easement to maintain the easement, the easement holder is not shielded from liability for its negligent maintenance of the easement. The underlying landowner must permit the easement holder to use the easement in accordance with the easement’s terms but may not interfere with or disrupt the easement holder’s use. The rights of a landowner who has sold an easement are governed by the same law of easements. Neither the holder of an easement nor the underlying landowner have the right to significantly change the easement’s location. Washington’s case law appears to favor the underlying landowner when it comes to the centerline rule. The court stated, when a specific location of a roadway was not mentioned, and east and west boundaries not delineated, the road was to be located in the middle or center of the easement.
Disputing a Washington Easement
Most disputes involving easements can fall under one of two categories: (1) disputes in which there is a disagreement about the terms of an express easement and/or (2) disputes in which a party claims there is a prescriptive easement when the "easement holder" does not actually have a property interest in the area. As noted above, an easement is an interest in land, so typically an adverse possession claim will not be considered in an easement dispute, although it may, in certain circumstances (i.e., landlocked properties), be part of a larger litigation dispute involving a prescriptive easement.
Express easements are usually documented in a written agreement. Unfortunately, given how easy it is to draft these agreements, parties sometimes take too little time to focus on including the proper details in the express easement. While allowing your lawyer to draft your easement agreement may seem like an inconvenience at the time, it will likely be the better choice in the end if a dispute arises over the agreement because the court is far less likely to intervene if the agreement is clear. Alternatively, in the event the easement is created because of long-standing prior use, parties may find it necessary for the court to determine the scope of the easement based on that prior use. Overall, in disputes over the terms of expressed easements the court will analyze the easement agreement as a whole and use the ordinary meaning of the terms to determine how the easement agreement should be interpreted.
With regard to prescriptive easements, there are multiple ways of describing how a prescriptive easement can be acquired, but essentially the easement holder must show (1) an open and notorious use of land (reference to eminent domain rules), (2) for a period of ten years, and (3) that the use was adverse (not permissive). Where the easement holder is claiming that a prescriptive easement exists, the other party will defend against the claim by arguing that the use was not open and notorious, or that the use was permissive, thus preventing the use from being adverse. The courts have noted that each case must be evaluated on its own merits, and that the totality of the circumstances rule will be used to determine whether the easement holder has met his/her burden of proof. In addition to asserting that the use was not open and notorious and that it was permissive rather than adverse, the person denying the existence of a prescriptive easement may also assert an affirmative defense and/or request a prescriptive easement for their own use. If the easement holder’s use was actually permissive, the landowner may be able to require the easement holder to pay a fair market value or reasonable rental to use the land.
Modifying or Ending an Easement
An easement may usually be changed or terminated in one of three ways, the first two of which involve the agreement of the easement holder: (1) Abandonment; (2) Release; (3) Merger.
Abandonment
An easement holder will not lose the easement without an affirmative action to abandon the same. Abandonment must be based on the "intention of the owner of an easement to relinquish its use and enjoyment under a claim of right." Intention may be manifested by acts, words or conduct. Reasonable issues of fact as to the intent of the easement holder are for the jury .
Release
A formal release of an easement terminates the easement. An easement may be released in the same manner as a lease or deed. The easement must be released by the grantor of the easement. A release must be in writing and conform to the statutes of frauds.
Merger
Finally, an easement may be terminated through merger by the same person obtaining title to both the land and the easement. In such an event, the easement will terminate unless the party divided the original unity of title.