Implied Easements – You cannot deny how the property has been used in the past.

The elements for finding an easement by implication or an implied easement are:

  1. There has been unity of title – both lots were at one time owned by the same person;
  2. The lots are no longer owned by the same person, or possibly still owned by one person, but one or both lots have been leased;
  3. There has been an apparent and continuous quasi easement (quasi easement in that a written easement agreement has not been put into place) existing for the benefit of one lot to the detriment of the other lot, when both lots were owned by the same person
  4. There is a certain necessity that the quasi easement exist after severance.

Elements 1 & 2 – Unity of title and later separation are absolute requirements.  Elements 3 & 4, are not required, but rather, serve as aids in making the ultimate determination – what was the intent of the buyer and seller when the dominant lot (lot that would benefit from the easement) was sold.

A review of one leading case in Washington on implied easements, Hellberg v. Coffin Sheep Co., 66 Wn.2d 664 (1965), will provide an understanding of how the elements are examined. Hellberg leased 3,000 acres (“Hellberg Property”) from the Coffin Sheep Company (“Coffin”). The Hellberg Property is landlocked by other property owned or controlled by Coffin and is accessed from the public highway by a road over property owned by Coffin. A lawsuit commenced when Coffin padlocked a gate that blocked the access road.

Applying the four elements, the court found that the property at play had been owned by Coffin (element #1) and that the lease to Hellberg had worked a severance (element #2). The disputed road has been in place and used for years (element #3) and was the only practicable way to access the Hellberg Property (element #4).

A newer case, where the court rejected an argument that an implied easement existed is Weidner v. Sunflower Props., LLC, Court of Appeals of Washington, Division One, No. 74631-6-I (December 19, 2016). Weidner dealt with access to two lots that Weidner acquired from Sunflower. The lots may be accessed via a gravel road that ran over a lot retained by Sunflower or by Greer Lane.

The first two elements were easily satisfied as all the lots were owned by Sunflower, who sold two to Weidner. Weidner argued that they needed to use the gravel road as it provided access to the buildable portions of their two lots, and that it would be prohibitively expense to construct a driveway from Greer Lane. The problem for Weidner was that they could not show that the gravel road had been continuously used to access their lots. At most, all that they could show was limited or intermittent use, such as Sunflower using the road to put gravel on the lots. On the fourth element, there being some degree of necessity for the easement, the only evidence presented was by Sunflower who provided an estimate of $10,000 – $15,000 to build a driveway, which the court did not find prohibitively expensive given the cost of the lots was $305,000.00.



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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