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 are easements appurtenant, which run with the land and give property owners “rights of way” across neighboring parcels of land.

If you need to enforce or defend an easement, reach out to Dickson Frohlich Phillips Burgess. Our team of experienced attorneys will thoroughly analyze your case, consider your needs, and provide guidance and advice involving potential easement agreements. We can also resolve easement-related disputes. Call 206-621-1110 (Seattle), 253-572-1000 (Tacoma), 360-742-3500 (Olympia), 971-416-0881 (Portland). to learn more about how we can help you.

Why Choose Us

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.

All of our attorneys have impressive backgrounds and take their roles as “counselors” seriously. By partnering with us, not only will you gain access to attorneys who can navigate Washington State’s complex real estate law, but you will also have allies who will analyze and explain your challenges.

Dickson Frohlich Phillips Burgess was founded by Thomas L. Dickson, who graduated from the California Western School of Law. As an experienced litigator, Tom has over 30 years of experience helping clients with easement, business, and construction matters. He has also written many books about his areas of practice. The Expert Network has recognized Tom as a Distinguished Lawyer.

How We Can Help

Dickson Frohlich Phillips Burgess’s Seattle and Tacoma lawyers offer experienced legal advice and representation for easement claims. We have been serving individuals and businesses in the Puget Sound area for over 25 years.

We do the following for you as Seattle & Tacoma easement attorneys:

• Prioritize your needs. Our firm is specifically designed to be nimble and adapt to your unique needs. This is because every client is unique.
• Explain what can be done. We will explore all possible solutions for your case and consult with you to determine the best course of action.
• Draft and file paperwork on and ahead of time. We will prepare and file paperwork on your behalf before all relevant deadlines.
• Negotiate and communicate on your behalf. We will talk to the opposing side’s lawyers and negotiate for fair compensation.
• Represent you in court. If necessary, we will take your case to court so you can enforce or remove an easement.

Types Of Easements

There are two main types of easements in Washington law:

• Easements in gross: Also known as personal easements, these easements give certain entities or parties the right to use someone else’s property. A common example is a utility easement that allows utility companies to maintain and install infrastructure on private property. These easements prevent homeowners from doing activities that could damage the equipment.
• Easements appurtenant: These easements run with the land and benefit whoever owns a property. Common examples include an easement that lets a property owner cross into their neighbor’s land to reach their property and one that lets a property owner enter a neighbor’s land to access a public park.

How Are Easements Created?

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 the creation of easements in other ways:

Express Easements

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 rear property being 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 Easements

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. There may even be a moment in time when 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.

Note that the creation of a prescriptive easement is wholly irrespective of the recipient’s intent or mindset. 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 the conduct over the 10-year time frame.

Easements Implied by Prior Use

These easements are based on prior use. They intend to honor informal easement-like agreements that probably ran with the land.

A recent example is Conklin v. Bentz, 2021 WL 2229818. In this case, adjoining property owners bought their properties from the same person. The properties shared the same septic drain field system that was located on the defendant’s property. After a blockage in the drain field caused severe damage to the defendant’s property, the plaintiff told the defendant to disconnect her property from the drain field. The defendant refused, and the plaintiff brought an action for exclusive use and access to the drain field and accused the defendant of nuisance and trespass.

The court dismissed the plaintiff’s claims and found an implied easement based on prior use. This was because the drain field was necessary for the use of both parties’ respective properties.

Easements by Necessity

Easements by necessity arise when one property has no access to something that is required for using and enjoying the property. A typical example is when one property is landlocked by another, and the owner of the landlocked property must pass through the surrounding property to access a public utility or road.

When Do Easement Disputes Arise?

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 — such as prescriptive and implied easements — 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.

Frequently Asked Questions

Washington’s easement laws can be difficult to understand, especially if you have never been involved in an easement dispute. Here are our answers to frequently asked questions about easement disputes:

What are the two main kinds of easements?

There are two main types of easements in Washington state:

• Easements in gross give certain individuals or entities the right to use someone else’s property.
• Easements appurtenant run with the land and benefit whoever owns a property.

How do easements arise?

Parties may create easements in the following ways:

• Express easements are created by express agreement between the parties. They are the most common type of easement.
• Prescriptive easements arise when a property owner openly, continuously, and hostilely uses part of another’s land for 10 years without permission.
• Easements implied by necessity are based on prior use.
• Easements by necessity arise when one property cannot access something that is required for using and enjoying the property. As a result, the property owner must pass through another property to use and enjoy their property.

How do easement disputes happen?

Once an individual or entity asserts that an easement exists, easement disputes may arise.

For example, a property owner may deny the existence of an easement and try to stop another party from using their land. These disputes can also arise when property owners disagree on the terms of an easement.

How can I challenge an easement?

If you own a piece of property that is subject to an easement and you do not agree with how another party is using your property, you can challenge an easement by either removing the easement or limiting how the easement holder is using your land.

Common remedies available to property owners subject to an easement include:

• Total removal of the easement
• A court order to restrict the way the easement holder is using the land
• Financial damages for any losses property owners have experienced due to the easement.

Contact Us

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 our seasoned team of easement lawyers.

Call us today at 206-621-1110 (Seattle), 253-572-1000 (Tacoma), 360-742-3500 (Olympia), 971-416-0881 (Portland).