I Need an Easement! Things to Consider in Washington State
An easement is a nonpossessory right to use or enjoy someone else’s land. In other words, an easement grants the holder a limited privilege to perform certain acts on someone else’s land without owning that land. It is a right to use, but not own (outright), the land owned by another.
There are two major types of easements: easements in gross and appurtenant easements.
RCW 64.65.010 defines an easement in gross as an “easement not tied to or dependent on ownership or occupancy of a unit or a parcel of real property.” Typically, unless expressly called out in the document, the party benefitted by the easement cannot transfer their easement rights to another party, and their rights do not depend on property ownership. Common examples of easements in gross include utility lines, rights to extract minerals, and railroad rights of ways.
RCW64.65.010 defines an appurtenant easement as an “easement tied to or dependent on ownership or occupancy of a unit or a parcel of real property.”
They involve properties located adjacent or nearby to each other. The party who enjoys the “use” is referred to as the “benefitted party” or “grantee”, and they own the “dominant estate.” The party who owns the property subject to easement is the “burdened party” or “grantor” and they own the “servient estate.” Written appurtenant easements must be recorded and often, though not always, last in perpetuity. The grantor and grantee necessarily can transfer their rights under appurtenant easements to other parties. The easements benefit the land, or as commonly stated, “run with the land.” They will remain binding on successor owners to the dominant and servient estates. When most people think of easements, they are thinking of appurtenant easements.
Washington State presumes easements to be appurtenant easements unless there is proof to the contrary. When addressing the need for an easement with a neighboring property, the parties are dealing with an appurtenant easement. There are many types of appurtenant easements, such as easements for parking, for ingress and egress through driveways, for exclusive use of a portion of land, and more.
When granting or securing an easement, there are several items that the parties to the easement must consider, including but not limited to:
- Who has responsibility for maintenance and repair of the easement area? What are the parameters? In Washington State, the grantee is presumed to have responsibility absent an express agreement that deviates from this.
- Who has responsibility for property taxes on the easement area? The grantor is presumed to retain the responsibility for taxes because the grantor still owns the easement area.
- What is the term of the easement? Is it in perpetuity? Does it have a term limit?
- Is there consideration for the easement? Has the easement right been purchased? Have other property rights been exchanged? There may be tax implications if consideration is exchanged for the granting of an easement.
- What is the scope of the easement? For example, for ingress and egress, will there be restrictions on the types of vehicles that may travel through? Will parking be allowed? How about gates?
- Indemnification? If the grantee has exclusive use of an easement area, the property owner could still face liability if something happens within that easement area. Indemnification may be appropriate.
- Dispute resolution? Do the parties want to litigate disputes in Superior Court or engage in alternative dispute resolution?
- Possible remedies? Sometimes injunctive relief and specific enforcement are appropriate additional remedies.
The list above represents only a subset of the considerations that parties to an easement must keep in mind when giving up or gaining easement property rights. Lawsuits over poorly drafted and/or thought-out easements constitute one of the most common types of real estate litigation. Legal representation in the assessment and drafting of an easement can avoid serious negative consequences in the future.
The lawyers at Beresford Booth have significant experience with real estate issues, including the preparation of easements, and litigation over easements. If you have any questions or need assistance with any real estate issues, please do not hesitate to contact us at info@beresfordlaw.com or by phone (425) 776-4100.