Exclusive Easements In Washington
Posted May 28, 2020
By Washington State Business and Real Estate Law, and Litgation Lawyer Andrew M. McKenzie
In nearly all circumstances, an easement entitles its holder to make only limited use of another’s land. The default rule in Washington as in most jurisdictions is that even when an owner’s land (legally known as the “servient tenement” or commonly referred to as the “burdened property”) is encumbered by an easement in favor of another’s land (legally known as the “dominant tenement” or commonly referred to as the “benefitted property”), the burdened property owner may still make all uses of that owner’s property which do not “unreasonably interfere” with the rights of the party benefitted by the easement. But Washington recognizes that parties may contractually change that default rule by having the burdened property encumbered by an “exclusive easement,” which can give the benefitted property owner exclusive use of the land. There may be many reasons why the parties might choose an exclusive easement over an outright sale of a portion of the burdened property. Such reasons may include, inter alia, the following: (1) a decision that the burdened property owner should continue paying taxes on the encumbered portion; (2) restrictions or prohibitions on subdividing the burdened property; or (3) wanting to avoid the hassle and administrative burden of a boundary adjustment.
Until recently, published Washington case law remained silent on the requirements for creating an exclusive easement and the interpretation of deed language purporting to convey an exclusive easement. But about two years ago, that changed with the issuance of the published opinion of Johnson v. Lake Cushman Maintenance Co., 5 Wn.App.2d 765, 425 P.3d 560 (2018). The Court acknowledged that an exclusive easement can exist, but held that the “mere use of the word ‘exclusive’ in a conveying instrument does not, in and of itself, create an exclusive easement.” Merely using the word “exclusive” can leave ambiguity- such as the question, “exclusive as to whom?” Does the easement exclude only third parties, or does it also exclude the burdened property owner, or does it merely preclude the burdened property owner from granting the same or similar easement to others? This may lead to confusion about what the parties actually intended at the time the easement was granted, and may leave the benefitted property owner without the right to actual exclusive use. While one might resort to other contract language or extraneous evidence to show the intent of true exclusivity, the parties can avoid ambiguity by clearer drafting at the time the parties negotiate the easement. The lawyers at Beresford Booth have extensive experience dealing with real property matters, including the negotiation and drafting of easement rights, as well as the litigation of easement disputes. We would be happy to assist you with your easement-related needs.
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