Termination of Easements in Washington State
An easement is the right to use, but not own, the land of another. The “benefitted party” or “grantee” uses the easement area and owns the “dominant estate”, while the “burdened party” or “grantor” owns the property subject to the easement, known as the “servient estate.” Easements may serve a variety of purposes – ingress and egress, parking, construction, utilities, and more. The nature of the use of an easement will heavily depend on the scope of its terms.
Property owners may establish easements in a variety of ways. Most commonly, parties will create an easement using a written document – an express easement. A well-written express easement will clearly outline the rights and responsibilities of the grantor and grantee. Unfortunately, many express easements fail this fundamental task, a routine failure that has resulted in significant litigation across Washington State. Other ways to create easements include those established by necessity or by prescription (longstanding consistent hostile use).
Easements run with the land (which means that they impact successive property owners) and often, though not always, run in perpetuity. Sometimes, however, a property owner will want to terminate an easement for one reason or another. Termination can occur in a variety of ways. Three ways in which parties can terminate an easement without the intervention of the Court are:
- Expiration: This occurs where the express terms of the easement itself dictate that it will terminate after a date certain.
- Release (Recording a Termination of Easement): Parties can agreeto terminate an easement by release and do so by recording a document that expressly terminates the easement. This remains one of the most effective and certain ways of terminating an easement and can avoid confusion and litigation down the road.
- Merger of Title: If a single owner comes to own both the dominant and servient estates, title merges and the easement no longer exists because the easement no longer serves any purpose.
However, termination of an easement on other grounds may require court intervention. In other words, sometimes a property owner can only terminate an easement by filing a lawsuit and having a court determine that the easement has been terminated under some enforceable legal theory. Some of these legal claims for termination of an easement might include:
- Prescription: This occurs where the burdened party causes termination of the easement by obstructing the easement with an intent to eliminate it. If the burdened party effectively blocks use of the easement for a period of ten (10) years, this may terminate the easement by prescription.
- Abandonment: This occurs when the benefitted party demonstrates a clear intent to abandon use of the easement. This requires clear and convincing evidence.
- Frustration of Purpose: My colleague, William Kessler, wrote an article about termination of easements for frustration of purpose here. Essentially, in this case, the original purpose for which an easement was established no longer exists. The easement, effectively, serves no purpose. This can result in termination of the easement.
- Vagueness: An easement can sometimes be terminated if it is vague to the point of unenforceability.
Easements can be established and terminated in a variety of different ways. Sometimes, clear documentation can avoid the need for court intervention. Other times, parties must use litigation to enforce their rights. Fundamentally, even though easements are ubiquitous in Washington State, their interpretation and enforcement can require nuanced legal counsel.
The attorneys at Beresford Booth have extensive experience in drafting, interpreting, and litigating over easements. If you have any questions regarding easements that affect your rights, please do not hesitate to contact us at info@beresfordlaw.com or by phone at (425) 776-4100.