More On Private Condemnation To Access Landlocked Property

Andrew M. McKenzie, Edmonds Lawyer

About three years ago, I posted on private condemnation generally, here:, explaining how private condemnation can be the solution to getting access to landlocked property.  A recent case from Division II of the Washington State Court of Appeals has further illustrated how private condemnation can apply in the face of arguments over feasibility of development, alternative access, and claims of unfairness.

In Nayeri v. Eagle Hardware & Garden, the plaintiffs purchased two surplus parcels along State Route 16 in Tacoma from the Washington State Department of Transportation (“DOT”), after DOT determined the parcels were no longer needed for a planned freeway project.  Plaintiffs apparently obtained the parcels at a significant discount, knowing that they were landlocked and that DOT would not grant any access from adjacent SR-16.  Plaintiffs hoped to develop the property with a 10,000 square foot office building.  After attempting unsuccessfully to negotiate for access over several adjacent privately owned parcels owned by three defendants, plaintiffs filed a lawsuit to compel access via private condemnation.  The defendants brought a motion for summary judgment (you can watch our webinar about how summary judgment works here:, asking the trial court to determine that plaintiffs were not entitled to private condemnation for several reasons: (1) plaintiffs knew the property was landlocked when they bought it, and such was reflected in the discounted purchase price; (2) it would supposedly be legally impossible for plaintiffs to ever develop the property, given steep slopes, regulatory difficulties with the City of Tacoma, and lack of any concrete development plans by plaintiffs; and (3) the defendants each showed reasons why access over their property would impose undue burdens on them.  The trial court granted summary judgment to the plaintiffs, primarily on the ground that plaintiffs did not have, nor had they pursued, any permits from the City of Tacoma for any concrete development plans. 

The Court of Appeals reversed, making several significant rulings: 

First, the Court rejected the defendants’ argument that plaintiffs’ knowledge of the landlocked status of the property precluded a claim of private condemnation.  Said the Court, “Holding that buying property known to be landlocked means the purchaser can never demonstrate reasonable necessity under RCW 8.24.010 would contravene Washington’s ‘overriding public policy goal against making landlocked property useless.’”  The Court distinguished these circumstances from another case from the Washington Supreme Court (Ruvalcaba), in which a landowner was barred from seeking private condemnation where they had voluntarily landlocked their own parcel and waited several decades before bringing suit.  In Nayeri, the Court noted that the plaintiff’s knowledge of the property being landlocked was a factor which the trial court could consider in determining whether there was reasonable necessity for private condemnation, but it may not be the sole ground for denying relief.

Second, the Court rejected defendants’ claims that it was legally impossible for plaintiffs to build on their property.  Plaintiffs’ experts testified of their opinion that the property could be developed in compliance with City requirements, and that engineering infrastructure and methods could solve any geotechnical or environmental concerns.  The opinions of the defendants’ experts to the contrary did not justify granting summary judgment.  The Court contrasted these facts with another case from 2000 (Granite Beach Holdings), wherein development was truly legally impossible because the parcel in question was surrounded by State land which could not be condemned through private condemnation.

Third, the Court held that plaintiffs were not required to have a concrete development plan for the property in place to determine reasonable necessity for private condemnation.  “It is true that [plaintiff’s] lack of concrete development plans leaves significant questions about the scope of the easement that a trier of fact could grant.  But the scope of access is different than the necessity of access.” 

Fourth, the Court rejected arguments from the defendants that imposing an easement on their property would cause an undue burden due to destruction of parking stalls, rendering site security difficult, or interference with business operations.  “Expert testimony that a route is the only reasonable means of accessing a property is sufficient to create a genuine issue of material fact regarding feasibility and reasonable necessity that precludes summary judgment.” 

Fifth, the Court affirmed the trial court’s grant of attorneys’ fees against plaintiffs, even though the Court reversed summary judgment.  This is in large part because Washington State’s private condemnation statute allows the court to award attorneys’ fees to the party resisting condemnation, regardless of whether the trial court ultimately imposes an easement.

Conclusion:  Nayeri is a great case study showing how private condemnation actions can play out.  It illustrates how effective of a tool private condemnation can be to establish access, and how strong Washington’s policy is against rendering property useless because it is landlocked.

Whether you are seeking to establish access to a landlocked parcel, or seeking to prevent it for legitimate legal reasons, the lawyers at Beresford Booth would be pleased to assist you.

To Learn More about More On Private Condemnation To Access Landlocked Property, please do not hesitate to contact us at or by phone (425) 776-4100 for assistance.

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