Does a Permissive Easement Require a Document Titled a “Deed” in Washington?
In Washington, one way a real estate owner can grant another real estate owner the right to use the first real owner’s real estate for a particular purpose is for the first owner to grant the second owner an easement. Under Washington law, an easement is an interest in real estate. It is a non-possessory interest because it does not give the owner of the property benefited by the easement the right to possess the property that is burdened by the easement; it merely gives the owner of the benefited property the right to use the property burdened by the easement for the purpose of the easement.
Under Washington law, an interest in real estate must be conveyed by a deed. As a result, when one property owner grants another property owner an easement, the grant of that easement must be in the form of a deed and should be recorded in the real estate records of the county where the property is located. Sometimes, such a document is titled “Deed of Easement,” or something similar.
Does the document conveying the easement need to include the word “deed” in the title? Best practices would answer yes to that question because (1) the document is conveying an interest in real estate, (2) state law requires the conveyance of an interest in real estate to be by deed, and (3) the document should be in the form of a deed containing the appropriate language for conveying the interest in the real estate. If the document is in the form of a deed, it would be appropriate to include the word “deed” in the title of the document because it accurately describes the document. Unfortunately, inclusion of the word “deed” in the title of such documents has caused rejection of such documents for recording in some of the state’s recording offices. The reason for such rejection is unclear. Removal of the word “deed” from the title of the document, without any change to the substance of the document, has resulted in recording in the real estate records. But, given Washington law governing the granting of easements in real estate, removal of the word “deed” from the title of such documents should not be necessary or a condition for recording of the document.