Seattle & Tacoma Easement Attorneys
An easement is the right to use another person’s property for a specified purpose. Easements do not involve transfer of ownership. The most common types of easements are ingress and egress easements, often referred to as “rights of way” across neighboring parcels of land.
The rights of an easement holder vary substantially depending on where a piece of property is located. However, all varieties of easements are based on these four original categories:
- Right-of-way (easements of way)
- Easements of support (pertaining to excavations)
- Easements of “light and air”
- Rights pertaining to artificial waterways
Easements are most often explicitly created in property documents. Under most circumstances, having a verbal conversation with another party is not sufficient. Courts have also recognized creation of easements in other ways:
- Express easement
- Implied easement
- Easement by necessity
- Easement by prior use
- Easement by prescription
- Easement by estoppel
- Easement by the government
Easement disputes often arise when one party disregards or fails to comply with the terms of the agreement. While disputes in express easements, which are created by written instruments, are easier to mediate; other types of easement disputes are more difficult to resolve. Prescriptive easements are created through a pattern of use and are granted after the person using the easement has used the property in a hostile, continuous and open manner for a specific number of years. Implied easements are not recorded or explicitly stated, but reflect the practices and customs of use for a property. Courts typically refer to the intent of the parties, as well as prior use, to determine the existence of an implied easement.
YOUR PARTNER IN EASEMENT DISPUTES AND LITIGATION
Dickson Frohlich Phillips Burgess has over 100 years of combined experience serving Seattle and Tacoma clients in easement disputes and litigation. From large parcel owners to developers, to homeowner associations, our team of litigators is ready to serve your legal needs.
Types of Easements
While in theory, holding title to real estate would preempt all other parties from using it without express permission. However, that is not entirely correct. An easement exists when a third-party has a non-possessory right to use your property. Easements are most frequently created through written agreements. However, often an easement is established for third parties such as utility companies, cable companies, and local municipalities. In short, while it is true that a property owner has title to his or her land, it is not without encumbrances.
Express and Prescriptive Easements Explained
There are four types of easements, two of which are extremely common (express and prescriptive easements), while the other two are rare (implied easements and easements by necessity).
Express Easement: The most common easement, as stated above, is an express easement. Again, these are established through written agreements between parties. A common form of an express easement is that of a shared driveway. The scenario is simple to conceptualize: imagine one home built behind another, with the only way to reach the property is through a shared driveway located entirely on the property in front.
An express easement for ingress and egress would provide a nonpossessory right for that property owner to traverse the portion of the driveway on his neighbor’s property in order to reach his home. Certainly, there are numerous other types of express easements, such as utility easements. However, even if the document is not generated to establish an easement, one can develop over time.
Prescriptive Easement: A prescriptive easement can form based entirely on the conduct of a trespassing party. Similar to adverse possession, if a party uses someone else’s property for over 10 years, and does so openly, without permission, and in a manner akin to the actual title holder, he may establish a permanent easement to continue that use. The initial entry of that individual onto another’s property would be classified as trespass. However, that same use, over time, may establish a permanent legal right.
For example, suppose that for decades, your neighbor utilized a section of walking path that traversed a back portion of your property. Suppose that her use of the pathway was obvious and apparent, and you never issued approval or permission for her to do so. In fact, perhaps there is even a moment in time where you asked her not to, but she continued to do so anyway. Your neighbor may have established a permanent prescriptive easement to continue utilizing that pathway.
Bear in mind that the creating of a prescriptive easement is wholly irrespective of the mindset of the recipient. It is irrelevant whether the trespassing party intended on establishing a permanent usage right, or whether she did so by accident. What matters to the law, is what the conduct actually was over the 10-year time frame.
Whether you are looking to enforce or defend against an easement, Dickson Frohlich Phillips Burgess is here to help. If you need high quality, cost-effective service and innovative legal solutions in real estate, count on Dickson Frohlich Phillips Burgess.
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(253) 572-1000 in Tacoma
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