Creating Easements Out of Thin Air? Even when there is nothing in writing, an easement might be found.

The typical way to create an easement is through a written agreement that is notarized and recorded. Ideally, the easement will contain a legal description identifying where the easement runs and clearly state how the easement may be used – utilities, ingress and egress, solar, view, etc. However, a court may find that an easement exists, or was created, even when there isn’t a written agreement.

When a court finds that an easement exists, even when there isn’t a written agreement, it is said that that the easement was created by operation of law. The four primary theories supporting these easements are: (1) prescriptive easements, (2) easements by estoppel, (3) easements of necessity, and (4) easements by implication (also called quasi-easements, easements implied by grant, or easements implied by prior use).

This article will quickly summarize the elements or requirements of each of these four easements, with future articles going into detail on each theory.

 

Prescriptive Easement

The test for a Prescriptive Easement is essentially the same as used to establish adverse possession: open and notorious use; over a uniform route; continuous and uninterrupted for 10 years; adverse to the owner of the land; and with the knowledge of the owner when he was able in law to assert and enforce his rights.

 Easement by Estoppel

An Easement by Estoppel is established through showing: misrepresentation or fraudulent failure to speak; and reasonable detrimental reliance on the misrepresentation or failure to speak

Easement by Necessity

The theory of Easement by Necessity arose out of the public policy disfavoring leaving property landlocked and rendered useless – the only way to access your property is across someone else’s property. Easements by necessity do not require showing prior use, rather they require showing strict necessity. Washington has adopted statutes governing the right to condemn a private way of necessity. Chapter 8.24 RCW.

Implied Easement

The doctrine underlying an implied easement is that when you buy land, you are also impliedly buying all things necessary to its reasonable use and enjoyment – access to the land. Generally, to establish the existence of an implied easement, three essential elements must be proved: (1) unity of title (the property that the easement runs over and the property served by the easement, were owned by the same person at some point in time) and later separation by grant of the dominant estate (the property served by the easement is the dominant estate and the property it runs over is the servient estate); (2) prior apparent and continuous quasi easement for the benefit of one part of the estate to the detriment of another, and (3) the easement must be reasonably necessary for the proper enjoyment of the dominant estate. The first element is an absolute requirement, while the second and third elements serve as aids in determining the primary consideration—the presumed intention of the buyer and seller. Because the intention of the buyer and seller is the key issue, the presence or absence of either or both the second and third elements is not necessarily conclusive.

 

As previously noted, each of these theories will be discussed in future articles.

 

 

This blog post is offered for general information and educational purposes only. It is not offered as legal advice and does not constitute legal advice or opinion. Although I intend to keep this information current, I do not promise or guarantee that the information is correct, complete, or up-to date. You should not act or reply upon the information in this post without seeking the advice of an attorney.

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