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This article will provide a brief overview of easements including the different types of easements, whether an easement can be moved, and whether you or your neighbor is overburdening or misusing the easement.

Easements: An easement is a right to use another person's property for the specified purposes. For the most part, easements belong to the land and "run with the land," rather than to certain people. To "run with the land" means that the benefits and burdens of the easement stay with the properties when they are transferred.

The property owning the right to use another property is the "benefitted" or "dominant" parcel. The property being used is the "burdened" or "servient" parcel.

A party may create a private easement (1) in a deed transferring the property burdened by the easement, (2) by deed transferring or creating only an easement, (3) in CC&R's, (4) by including the grant in a plat, and possibly other ways. No particular words are necessary to create an easement so long as the language used shows an intent to grant with terms that are certain and definite. McPhaden, 95 Wn. App. at 435. RCW 58.17.165; M.K.K.I., Inc. v. Krueger, 135 Wn. App. 647, 653, 145 P.3d 411 (2006)

Easements can also be created through adverse use. These are called prescriptive easements. Like adverse possession, use of another's property, without their permission, for certain purposes over the statutory period, can lead to a prescriptive easement, i.e. a legal right to continue that use even if the other property owner tries to stop you.

The elements of a prescriptive easement are (1) open and notorious use of land, (2) over a uniform route, (3) for a continuous and uninterrupted period of 10 years, (4) adverse to the owner of the land, (5) with knowledge by the owner at a time when the owner was able in law to assert and enforce ownership rights. Kunkel v. Fisher, 106 Wn. App. 599; 23 P.3d 1128; 2001.

There are also somewhat rare occasions where a Court will imply an easement. An implied easement may arise (1) when there has been unity of title and subsequent separation; (2) when there has been an apparent and continuous quasi easement existing for the benefit of one part of the estate to the detriment of the other during the unity of title; and (3) when there is a certain degree of necessity that the quasi easement exist after severance. MacMeekin v Low Income Housing Institute, Inc., 111 Wn. App. 188; 45 P.3d 570 (2002); Hellberg v. Coffin Sheep Company, 66 Wn.2d 664, 404 P.2d 770 (1965).

When Location Isn't Everything ... Is There Relocation? The majority of courts that have addressed the issue have held that they lack the equitable authority to order relocation of an easement, even if the change is necessary to one estate and would not inconvenience the other.

The Restatement (Third) of Property: Servitudes (2000) adopts the minority view. Section 4.8(3) of Restatement (Third) provides: "Unless expressly denied by the terms of an easement, . . . the owner of the servient estate is entitled to make reasonable changes in the location or dimensions of an easement, at the servient owner's expense, to permit normal use or development of the servient estate, but only if the changes do not (a) significantly lessen the utility of the easement, (b) increase the burdens on the owner of the easement in its use and enjoyment, or (c) frustrate the purpose for which the easement was created.

However, the Restatement approach has been rejected in Washington in MacMeekin v Low Income Housing Institute, Inc., 111 Wn. App. 188; 45 P.3d 570 (2002) Division I. "We decline to adopt the Restatement (Third) approach. We also decline LIHI's invitation to rule that trial courts have the authority to order relocation of easements created by prescription, if none other, based on equitable principles. Although our Supreme Court has never directly addressed the issue of court-ordered relocation of easements, and we can be guided only by its pronouncements of dicta, the dictum contains every indication that Washington adheres to the traditional rule that easements, however created, are property rights, and as such are not subject to relocation absent the consent of both parties. We so hold."

Division II followed in 2005: "Judicial relocation of established easements, such as the one at issue here, would introduce uncertainty in real estate transactions. The Restatement's version of the relevant rule could invite endless litigation between property owners as to whether a servient estate owner may relocate an existing easement without a dominant estate owner's consent." Crisp v. Vanlaecken, 130 Wn. App. 320; 122 P.3d 926; 2005.

Are you a Burden on the Neighbor? Interpretation and Whether Changes to Use of Easement, or of Benefitted Property, Overburdens an Easement -

In Logan v. Brodrick, 29 Wn. App. 796, 631 P.2d 429 (1981) the Court held that an easement serving a resort was not overburdened by expansion of resort and increased traffic. "The law assumes parties to an easement contemplated a normal development under conditions which may be different from those existing at the time of the grant."

Brown v. Voss, 105 Wn.2d 366, 715 P.2d 514 (1986). An easement was created to access lot B. Owners of lot B bought neighboring lot C, and began to build a house that straddled lots B and C. Owner of servient estate blocked the easement, and lawsuit followed. Trial court awarded each party $1 and refused to grant an injunction. Ultimately, the Washington Supreme Court held that an easement right to access lot B could not be used to also access lot C. But under the unique facts of that case, the Court refused to enter an injunction.

Generally, an easement to access a benefitted parcel will be allowed to "grow" with the natural development of the area. Thus, a 60-foot wide access easement to reach a 40-acre parcel, located near other subdivisions, could almost certainly be used to access a subdivision within that 40-acre parcel. So an access to reach one lot, could then be used to reach, for example, 120 lots. In other situations, depending on the width of the easement, how it came into existence, the language of the easement, and scope of the increased use, there may be room to argue that the increased use is overburdening or misusing the easement.

For questions on these topics or any real estate law, please contact Matt Adamson at 206.292.1994


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