EASEMENTS: What you need to know.
Property Rights: a bundle of sticks
Owning property is a basic, fundamental right. When looking at property ownership, it is helpful to look at it as owning a bundle of sticks, where each “stick” represents the “right” to do something.
For example, one “stick” or property right can be the right to exclude others. Another “stick” can be the right to choose how to utilize the land. For example, you might choose to grow trees, pasture cows, or build a house. Since property rights are separate “sticks”, each stick can often be treated individually and sold, or ‘deeded,” to another without losing control (ownership) of the property, as a whole.
Easement defined:
An easement is one way to legally separate an individual property right and transfer the right for the benefit of someone other than the original property owner. Black’s Law Dictionary (7th ed.) offers the following:
An easement is “a right in the owner of one parcel of land, by reason of such ownership, to use the land of another for a special purpose not inconsistent with a general property in the owner.” Citing 2 Waslib. Real Prop. 25. This could be the right to drive over someone’s land to access your property, to cut and clear brush to maintain a power line, or even to access someone else’s property to go fishing in their pond. Easements may be viewed as private versus public. A private easement, generally, benefits only a limited number of individuals. Whereas, a public easement, such as a street or highway, extends benefits to the community, as a whole.
As you can see from Example 1, a property owner may be dominant over one parcel and servient to another.
Since easements involve a property right, it should always be in writing and signed. In addition, it is often a very good idea that the easement writing be recorded in connection with the deed and title of the parcels effected it.
Thinking about easements
When thinking about easements, it is often helpful to determine the type of easement, who benefits, and whether it can be assigned (transferred) to another party.
An easement in gross provides a benefit (right) to one or more persons, whether or not they own land or property. For example, the right to access property to go fishing is an easement in gross. You do not have to own any land to utilize this privilege. An easement in gross is, generally, not transferable to someone else. Sticking with our example, you cannot transfer your easement right to go fishing to your friend.
An easement appurtenant, generally, provides a benefit to a specific property. For example, a very common example involves driveways, where one property owner possesses an easement establishing the right to drive over someone else’s land to access their own property. In most cases, this type of easement “runs with the land.” When the person holding the easement sells their land, the easement right transfers to the new property owner.
How are easements created?
By agreement: Easements can be created by an agreement made between land owners. For example, I can give you permission to access your property by driving across my land. This is called an “express” easement and should always be made in writing and signed. When making an express easement, it is vital to consider and specify the particular aspects of the easement.
A properly drafted easement should specify the purpose of the easement and its location.
In addition, the easement should define:
- Whether it is in gross or appurtenant;
- Whether it is exclusive or non-exclusive;
- Who are the parties;
- What is permitted and by whom;
- What limitations are imposed;
- What is the extent of the rights retained by the servient owner;
- What is limited in terms of the dominant owner;
- What is its duration;
- Whether any consideration (payment) is involved;
- Who is responsible for maintenance and repairs;
- Who is responsible for taxes;
- How will notices be provided;
- If several parties are involved, how will disputes be resolved;
Further, it is helpful when drafting the easement to consider any factors or specific circumstances involved. Are there gates that need to be closed? Keys to locks or access codes to be provided? Is there noise or dust problems that could arise? How about times of entry, including time of day, specific seasons or certain conditions (wet, snowy, etc.) What happens in the event of an emergency?
The more situations that can be anticipated and resolved, proactively, translates to less potential problems down the road.
Can an easement be terminated?
There are various means by which an easement may be deemed terminated in Washington.
By agreement:
Similar to its creation, an easement may be terminated by written agreement between the parties, including the dominant easement holders and the servient easement holder.
By Abandonment:
If the dominant easement holder stops using an easement and demonstrates an intent not to renew using it, the servient property owner may seek to have the easement determined legally abandoned.
By Adverse possession:
If the servient property owner takes actions to prohibit the beneficial use of the dominant easement holder, they may overtime, regain the property right in question, and seek to have the easement legally terminated. The required time period for obstructing the use of the easement is, generally, ten years.
By Acquisition:
A straight forward way to terminate an easement is by acquisition. If a servient property owner purchases the property holding the dominant easement right, that owner may elect to terminate the easement since they hold the right. In this case, the termination of the easement should be reduced to writing and recorded in the jurisdiction that the property exists.
Key Takeaways
Understanding property rights as a bundle of sticks provides a framework to navigate the complexities of ownership, particularly in the context of easements. This article has delved into the intricacies of easements, from their definitions to the distinctions between private and public, dominant and servient roles. Emphasizing the importance of documenting easements, it has provided valuable insights into their creation, types, and considerations during drafting. The exploration of additional easement types, including by necessity, prescriptive, and eminent domain, broadens our understanding of these legal tools. As we explore the termination of easements through various means, such as agreement, abandonment, adverse possession, and acquisition, we recognize the dynamic nature of property law in Washington. In essence, this guide serves as an excellent roadmap, empowering property owners to obtain the help they need to navigate the nuanced terrain of easements with legal clarity and foresight.
How The Whipple Law Group Can Help
Safeguarding your property rights is crucial. It is vital to know what your rights are and how best to protect these interests. Having an experienced land use, real estate attorney available to discuss these matters is critical. Our attorneys at The Whipple Law Group stand ready to answer your questions and secure your interests. Contact us today to schedule your consultation.
