What’s the difference between implied easements, express easements and prescriptive easements?


understanding how easements work in Washington state and how they might affect your land use plans is important. In many cases, working with a skilled real estate attorney is the best way to get the information you need and ensure that your transaction goes as planned. Dickson Frohlich has earned a reputation for excellence in the region by providing superior service in real estate law, and offers a team of professionals to assist you with any real estate need.

What is an easement?

In most cases, when you purchase a piece of proper, you have the right to choose what happens on that property, as long as your actions are in line with the law. An easement is legal mechanism by which another party has a legal right to use a portion of your property.

There are two general categories of easements: gross and appurtenant.

Easements appurtenant

These types of easements allow the owners of an adjoining piece of property to use a portion of your property for certain purposes. The property that benefits from an easement appurtenant is called the dominant estate, and the property that is burdened by the easement is called the servient estate. When a property with an easement appurtenant is sold, the easement remains in place and passes to the new owners.

Easements in gross

An easement in gross is granted to a specific individual or entity. It does not remain in place when the property is sold, nor can it be transferred or inherited.

There are also several types of easements, categorized by how they come into being. Understanding how these easements work can help owners avoid actions that could unintentionally complicate their land use.

What are express, implied, and prescriptive easements?

Even when a property is subject to an easement, the owner still fully owns the property. They simply cannot fully control the way that part of the land is used. Some easements are simple, known to all parties, and never become a source of contention. Others can lead to prolonged legal struggles over who has the right to control land use.

Express easement

An express easement is the most common type of easement and is formed by an agreement between parties. A good example of an express easement is when the owner of a piece of land wishes to build a home on that land but cannot access the property from the road without crossing a portion of the neighbor’s property. Both parties could negotiate the terms of an express easement that allows for shared use of a driveway. This type of easement is created by a deed or written agreement.

Implied easement

With an implied easement there is no written record of agreement on how the property will be used. The easement is created by implication. There may be a history of shared use between property owners, or the use by one owner of the other’s property must be necessary in order for the person benefitting from the easement to enjoy their own property. Here, the same driveway example could apply, but there would be no recorded agreement between parties.

Prescriptive easement

These easements are established when a property owner makes use of another’s land in a way that is open, hostile, and continuous for a period of at least 10 years. This use is done without the permission of the owner and with no written agreement in place. An example would be a shed or outbuilding that encroaches on an adjoining property without that owner’s permission, where the building has been the subject of dispute for a period of time and when the individual who placed it there refuses to take action to remove or relocate it.

How do I establish an easement or defend an easement challenge?

Just as no two pieces of property are exactly alike, easements are also unique. Regardless of whether you are trying to secure the legal right to use the property of another or are trying to prevent such use from a neighbor, these cases require significant research and attention.

Easement disputes can quickly become contentious and can escalate into a whole new realm of legal troubles. The best way to move forward with an easement dispute is to work with a skilled legal team that is experienced in Washington property law. Some easement matters can be resolved through discourse and negotiations, while others eventually end up before a court of law.

It’s important to know your rights prior to approaching other property owners about easement issues. As with so many property matters, getting off on the wrong foot can be challenging to correct, and no matter how your easement issue is resolved, you will remain neighbors for a period of time. Make every effort to be civil and reasonable during your easement negotiations but be prepared to defend your position as needed.

When you have questions about easements or any other aspect of real estate law, the team at Dickson Frohlich is here to help. Providing superior service in real estate law is the central focus of the entire team, and you are welcome to reach out with any questions or concerns. Call today to set up a consultation to discuss the details of your specific land use circumstances.

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