An easement is a non-possessory interest in real property that allows one or more person to use a piece of property for a specific purpose, even though he or she does not own the property. If this seems confusing, you are not alone. In this article, we will walk you through the most common types of easements, how they originate, and how you can deal with common easement disputes that arise in your land use.
Why is this information important? Because easements tend to complicate and hinder the uses to which you can put your property. Therefore, it is worth investigating the impact an easement will have on the versatility and value of your property before you grant an easement across your property, or before you buy a property that is already subject to an easement.
Types of Easements
Washington law sets out two main kinds of easement:
Easement in gross – These easements give benefits to specific parties, regardless of what property they own. The party that benefits from an easement in gross usually cannot transfer those rights to another party.
This kind of easement is common when a utility company wants to install power lines or gas lines on a property. That specific utility company owns the easement and may not transfer its easement rights to anyone else.
Easement appurtenant – Instead of benefiting a specific person, this kind of easement “runs with the land” and therefore benefits whoever owns a particular property. In other words, this kind of easement is inseparable from the subject property, and passes from one owner to the next as the property is transferred.
A common example is a driveway easement. An easement appurtenant can occur when Neighbor A has no other way to access his land by vehicle except via Neighbor B’s existing driveway. B can grant A an easement appurtenant allowing A to use B’s driveway. If A ever sells the property, the new owner will inherit the right to use B’s driveway. This kind of easement is far more common in the cases we deal with.
Both kinds of easements have legal implications that property owners should carefully consider before granting either. In some cases, easements may arise even without your knowledge, so it is important to learn about any existing easements and what they mean for you.
How Easements Arise?
In some cases, another party may simply request that you grant an easement, giving you the opportunity to agree or not. In other situations, an easement can arise without your express knowledge or consent. Therefore, it is important to be vigilant when you allow others to use your property.
The following easements may exist in your area:
- Express easements – These easements are created by express agreement. They are typically negotiated by the parties, and then signed into existence by written agreement or by deed. These are the most common and straightforward kinds of easements.
- Implied easements – These easements are not specifically agreed to but the law can recognize them if the previous dealings and actions of property owners imply that they have been granted. For example, if a homeowner allows a neighbor to use his driveway for years—even with no official written easement—a court would likely find an implied easement.
- Easements by necessity – Easements can arise if one property owner needs to use part of another’s property to make use of his own. A common example occurs when one property is landlocked by another one, and the landlocked owner needs to pass through part of another’s property to access his own.
- Prescriptive easements – To obtain a prescriptive easement in Washington, one property owner must openly, hostilely, and continuously use part of another’s land for 10 years without permission. The laws for establishing a prescriptive easement are almost the same as the requirements for establishing adverse possession.
- Eminent Domain – Another common way an easement can originate is through eminent domain, which is also commonly referred to as condemnation. The government or an affiliated party (such as a utility company) may use its constitutional powers to take part of your land for the “benefit of the public.” Even if you do not wish to agree to the easement, eminent domain allows the government to take your land as long as it provides “just compensation” to you for the easement. If someone has approached you about a possible eminent domain action, you should speak with a real estate lawyer as soon as you can, and before you sign anything.
Easement Disputes and Litigation
Once an easement exists—or one party asserts that an easement exists—disputes may arise regarding the easement. Possible issues include:
- Property owners deny the existence of an easement and attempt to stop another party from using their land.
- Property owners try to block the legitimate use of their land under a valid easement.
- Two property owners cannot agree on the specific terms of an easement.
Our attorneys can often help resolve easement disputes between two parties without taking the matter to court. Usually, it’s better to avoid court due to the expense and uncertainty involved. However, our attorneys are prepared to represent you in litigation if the situation requires it.
Challenging an Easement or the Way Your Property is Being Used
If you own a piece of property that is subject to an easement and have issues with the way that your land is being used by the easement holder, you may be able to take steps to either remove the easement or limit the way the easement holder uses your land. Some of the remedies available to people who own property that is subject to an easement include the following:
- The issuance of a court order restricting the way that the party with easement rights used the land.
- Monetary damages for any losses that you experience due to the easement or the use of the land
- A removal of the easement in its entirety
Similarly, if your property is benefited by an easement, you may pursue certain remedies if your rights are interfered with by the owner of the property subject to the easement.
Contact a Washington Easement Law Firm for More Information
At the Brink Law Firm, our real estate attorneys fully understand the complex laws regarding easements in Washington state. We can provide advice and guidance regarding potential easement agreements and can help resolve easement-related disputes. Contact us online or call 253.620.6666 to schedule a consultation today.