Property Easements – and What You Should Know About Them

Season 3, Episode 2 – You may think its just shared space - the neighborly “gray” area between one piece of property and another. But a property easement can be so much more than just intersecting driveways. If not clearly defined, it could mean you forfeit some of your land. What’s worse, in some cases, you could even lose title to some of your land. Wait. What? Yes, it’s true – property easements are very complex, and it’s very important you understand them. Learn more and be in the know. Listen in to this podcast episode as JDSA attorney Matthew Hitchcock discusses Property Easements – and What You Should Know About Them.

This is the weekly podcast that clearly explains complicated legal issues, and how the law applies to your everyday personal and professional life. *JDSA’s Law Talk discusses general legal issues, but does not constitute legal advice in any respect. Please seek the advice of counsel prior to making or refraining from a legal matter.

Transcript

Announcer:  This is JDSA's Law Talk. This is the program that gives you the straight facts on our laws and how they affect your everyday personal and professional life.

Host:  Welcome to JDSA's Law Talk. I'm your host Clint Strand. On JDSA's Law Talk, we strive to simplify often complicated legal issues. Our attorneys choose a topic and break it down in conversation using examples and clear explanations. In short, we make sense of every day legal topics.

On this episode of JDSA's Law Talk, JDSA attorney Matthew Hitchcock is here. We're going to talk about property easements and what you should know about them.

Matthew, always great to talk to you.

Matthew:  Glad to be here. Glad to talk about easements. It's something I deal with on a regular basis, and I'm excited to get the word out.

Host:  I'm assuming we're not going to cross any lines we shouldn't when talking about this.

Matthew:  No.

Host:  That's my attempt at a lawyer joke right there.

Matthew:  Right. We'll keep it well within the boundaries of the appropriate discussion.

Host:  Lots to talk about here about easements and what you need to know about your property line and the other person on the other side. That's all coming your way next right here on JDSA's Law Talk.

Announcer:  This is JDSA's Law Talk. Hear more programs and read in depth articles on the law at JDSAlaw.com.

Host:  If you have a question about today's topic or topic discussion for a future episode, email us at lawtalk@JDSAlaw.com. I'm your host Clint Strand talking with featured attorney Matthew Hitchcock about property easements.

Matthew, let's get into this, but first let's do definitions because we need to know what we're talking about here. So, when we say the word easement, what do we mean?

Matthew:  The legal definition for an easement is a non-possessory right to the land owned by another. In functionality, what that actually means is that an individual who holds an easement has a right to use the easement for the defined purposes even though they don't actually own the property. They just can use the easement for a very limited scope within the definition of the easement.

Host:  So, there's one property owner who's going to benefit and another property owner who is, for lack of better term, burdened with this because they're doing this and they're not getting anything out of it essentially.

Matthew:  That is generally true. The actually words: benefit and burden, are legal terms of art. The benefited property is the property who has the right to use the easement, and the burden is, like you said, the property that the easement is located on.

Host:  Let's traffic in the real world here then. So, give me a specific example. If I'm a homeowner, how would an easement affect me?

Matthew:  So, you may have an easement related to a driveway. Your driveway may be located on someone else's property or starting on somebody else's property. You have to cross over their property to get to yours, you would have an access easement. Your property would be the benefited property and theirs would be the burdened property.

Host:  So that makes sense. Let's break it down further. I'm sure all easements aren't created the same or identically. Are there different categories of easements we're talking about here?

Matthew:  Yeah. Broadly speaking, there are two main categories of easements. The first one is the easement appurtenant. An appurtenant easement is one that runs with the land, and that means that no matter who the owner is, the easement remains benefiting the same parcel and burdening the same parcel. One of the keys for an easement appurtenant is that there must be a dominant estate and there must be what they call a servient estate.

Host:  So dominant and servient. What happens if the dominant estate is sold then?

Matthew:  If the dominant estate is sold, the easement continues with the land. So, the dominant estate would still be benefited by that easement even though there's an ownership change. The easements not unique to the owner, it's unique to the land.

Host:  Goes with the land, not the owner. Sure. What about the second category of easement?

Matthew:  The second category is an easement in gross. That is an easement that is specific to an individual person. The easement in gross is typically more nuanced agreement that cannot be sold, assigned or inherited unless all of the parties to that agreement, to that easement consent.

Host:  So, what's a real-world example then of that easement in gross?

Matthew:  So, one of the best real-world examples of an easement in gross are railroad tracks.

Host:  Sure. So, if the railroad uses the easement, once the railroad is through with that or they discontinue that line, the easement is discontinued and that's the end of that.

Matthew:  To some extent, that's a simplification but an accurate simplification.

Host:  I traffic in simplification. So, there you go. Let's drill it down even further. What about types of easements? Are there different types of easements here?

Matthew:  Yeah, the most important, the first type of easement that our listeners should be aware of are the express easements. Express easements are a written conveyance of an interest in land that must be in writing and it must be recorded with the county in which the land is located.

Host:  Okay. Now we have express. I'm assuming implied is on the way.

Matthew:  That's right. Implied easement is an easement that's not written down. It is typically inferred from rights and uses enjoyed by a previous owner where the dominant and servient estates or the benefited and burdened parcels were formally unified in title, owned by one individual, and that individual used the burdened estate in a particular way, which will allow a future owner or that benefited parcel to continue that use because of its historical importance.

Host:  So, it's literally this has been the way it has been. We're doing this in the future because this is the way it's been.

Matthew:  That's right. It's the way we've always done it. So unless there's a really good reason to stop, we don't need to stop.

Host:  Any other major types of easements we're talking about here?

Matthew:  Yeah. So, one that comes up frequently in my practice are prescriptive easements. Prescriptive easements are fairly complicated, but to simplify them, they're created over time. They take at least 10 years of continuous use by the dominant estate as if the owner of the dominant estate held an express easement for that use. There are five required elements to establish a prescriptive easement. Failure on one element results in failure of the entire claim.

The first of those elements is open and notorious use of the land. So, the use under the easement that the dominant estate owner is claiming is visible. The owner of the burdened estate would be aware of that use.

Host:  No ambiguity here as far as, "What's that guy doing?" It's apparent to everybody.

Matthew:  Right.

Host:  This is what this person's using it for. This person's using it as if it's his or her land.

Matthew:  That's correct.

Host:  Open and notorious. Okay. What else?

Matthew:  The second is over a uniformed route. That means that for example if it's a prescriptive easement for a driveway, there's a particular path across the burdened parcel.

Host:  You're not moving that asphalt on your driveway willy nilly. It's there and you're using it.

Matthew:  Right.

Host:  Okay.

Matthew:  If it was a dirt road, over the uniform route might have more significance because you would want to locate the easement in the specific place of that use. If they were driving here and there and every which way over the property, there wouldn't be a prescriptive easement claim.

Host:  Okay. Noted. Is there a time trigger here for a prescriptive easement?

Matthew:  Yes. As I said earlier, it must be continuous and uninterrupted use, and it must last for 10 years. So continuous and uninterrupted doesn't mean use every single day. It means repeated use following a particular pattern that would be consistent with how an owner would use it.

Host:  Okay. Three conditions down. Two to go. What are the other two?

Matthew:  So, the fourth element is, that the use must be adverse to the true owner of the property. Meaning that the person claiming the prescriptive easement, the manner in which they use that property is like a true owner, and the actual owner of that property isn't using the land that way.

Host:  What's the final one?

Matthew:  The final one is the knowledge of the true owner. The true owner must have knowledge at a time when he or she can assert his or her rights.

Host:  That's the kicker, isn't it? I mean, the true owner of the property sees what's happening, sees what the persons doing with their property, and makes the choice I'm not going to do anything about this.

Matthew:  That's right. That's what allows the prescriptive rights to right then.

Host:  Okay. One more type of easement. What's the fourth kind?

Matthew:  So, the fourth kind is an easement by necessity and very simply Washington Statute authorizes private condemnation of property for the express purpose of accessing an otherwise landlocked property. The easement by necessity is the terminology for that access reservation.

Host:  Okay. Very good. We are talking with featured attorney Matthew Hitchcock about property easements and what you should know about them. Very quickly because I know that we can drown in the details here, but from the 10,000 foot view, let's talk about the process here. How does an easement come to be?

Matthew:  As we've somewhat discussed throughout this episode, they can come in to being through historical use, if that's the way a property has always been used. The easement can come into being that way. They can come into use by necessity. If a parcel is landlocked and there's no other way to get to it, an easement by necessity may arise. However, the best practice is to get an express easement in writing because it clarifies the parties duties, rights, obligations, and an experienced real estate attorney can help draft those documents to effectuate the express easement.

Host:  Well, yeah. We're talking about two property owners here. One property owner using another person's property. What can go wrong, right?

Matthew:  Right.

Host:  Probably a whole lot if you're not being careful. We're going to talk about that, that's the fun part, coming your way next right here on JDSA's Law Talk.

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COMMERCIAL BREAK:  Real estate law. The complexities are vast. At JDSA Law, our team of attorneys provide you with sound legal advice on all types of real estate transactions. This is how we make your life better. Committed to you since 1946. JDSA Law.

Announcer:  This is JDSA's Law Talk. Hear more Law Talk programs now at JDSAlaw.com.

Host:  Remember, you can always connect with us on Facebook and follow us on Twitter. Just search for @JDSALaw. This is JDSA's Law Talk. We're talking with featured attorney Matthew Hitchcock about property easements and what you should know about them. Matthew, we spent the last few minutes talking about what exactly easements are. Now, let's talk about all the fun ways that they can go wrong, right? You have one property owner letting another property owner use their property. It can be express or implied. I'm sure there are lots of ways this thing can go sideways. So let's talk about it. What could possibly go wrong? Litigation. When we talk about litigation with easements.

Matthew:  Well, there's a saying that good fences make good neighbors. That's only true so long as the fence is built on the right side of the property line. Often, we see fences or out buildings, sheds, things like that built without the landowner first obtaining a survey and they cross over onto someone else's property line, creating the issue of whether there's a prescriptive easement or potentially an implied easement. When the improvements like a fence or a shed cross over onto the adjoining property, the court could go any number of directions depending on the facts and circumstances that are unique to each case. They may require that the improvements be removed, which if you built a three-car garage and it crosses over onto your neighbor's property by two feet, that's a pretty expensive price to pay for not first obtaining a survey.

The other option is you may potentially be required by the court to pay your neighbor for the land that you're now claiming. Then finally, frequently we see the benefited owner of an easement expand the scope of use. For instance, where I grant my neighbor a driveway access easement to his house, and he turns the 10-acre parcel that he owns behind his house into an event center. He holds weddings and concerts and other events there. The use of my driveway access easement was originally intended to be residential for him and his family and guests. Now I'm facing a situation where I've got on a weekly basis every Saturday there are hundreds of cars coming and going. That often leads to litigation over the easement.

Host:  I'm sure it can. What are some other common disputes? Paint the mental picture for us. What other scenes do you see walk through your office and through the courtroom?

Matthew:  Well, a lot of times it's a property owner trying to keep others off of his or her property. They don't want their neighbors to use an easement or don't want them to have the ability to establish a prescriptive easement. So that comes up a lot. Another situation arises somewhat in the reverse where the owner of the benefited parcel wants to continue to use an express easement, but the owner of the land blocks such use. A lot of times two neighbors may agree on the majority of the terms of an easement but have a sticking point in their written express easement that they can't agree on. There's an unknown as to who has what rights. So that comes up quite bit. Then finally, we see these questions come into my office where someone has a neighbor who's misusing an easement, or they can't agree on the terms of an express easement. That's the point and time where you should bring it to an experienced real estate attorney and they can help walk you through that process. You don't necessarily need to get to a lawsuit. A lot of times it can be resolved by an experienced attorney working with the parties to come to an agreement.

Host:  So, whether you're someone just simply living in a residential place or you're a business owner dealing with commercial land. What else should a landowner know when it comes to these easements?

Matthew:  Well, first and foremost, a landowner should inquire before they purchase the property as to what easements are on my property. Now chances are we all have an easement for something on our property, but oftentimes there will be an express easement that is recorded that the landowners not aware of. When the owner of the benefited parcel starts to use that easement, they're surprised. So regardless of residential or commercial, you should first be aware of what the easements are on your property.

Second is if it's an access easement or a water line easement that crosses your property and you're unhappy about it, your first reaction shouldn't be to block the easement. Don't put up giant boulders in the driveway to prevent your neighbor from being able to drive down the driveway. Don't dig up the water line and cap it so your neighbor can't continue to run water across your easement. That opens you up as the burdened property owner to damages, to liability for damages that you caused your neighbor.

Host:  Be nice.

Matthew:  That should be the first rule whenever we're dealing with our neighbors because after it's all said and done, whether you're a residential property owner or a commercial property owner, your neighbors are going to be your neighbors after the fight ends.

Host:  You're still going to be neighbors. All right. Well, let's capstone this. We'll talk about bringing it all together. Lots of information. We'll boil it all down for you. That's coming your way next right here on JDSA's Law Talk.

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Host:  Don't forget, you can find other episodes of JDSA's Law Talk on iTunes, Google Play Store, and wherever great podcasts are found like this one. This is JDSA's Law Talk. I'm your host Clint Strand. Talking with Matt Hitchcock about property easements and what you can do about them. Matt, a whole lot of information given over the last few minutes. Let's bring it all together. What would you like our friends to know when it comes to property easements?

Matthew:  Well, I think the first thing that people should know is that they can be complex. There are a variety of different types of easements. There are a variety of different uses for easements. There are specific statutory requirements for recording express easements or proving prescriptive easements. So, to build on that, each factual situation, each easement is going to be unique. No two easements are going to be the exact same. So, our listeners should be aware of the fact that if their neighbor had a similar situation 10 years before, that doesn't mean that the outcomes going to be the same for them this time.

Then finally, when you run into a situation with a neighbor and an easement is in dispute or an easement agreement is proposed, you should contact an experience real estate attorney because they can walk you through the process much more efficiently and much more cost friendly than if you tried to go it alone.

Host:  Matthew, thanks so much. We appreciate the time.

Matthew:  Thanks, Clint.

Host:  Thanks for joining us for this episode of JDSA's Law Talk. Remember, if you have a legal matter and it requires solid legal advice, connect with a member of the JDSA law team at JDSAlaw.com. You can also hear law talk episodes on other topics and submit your questions or suggests for a future show. I'm your host Clint Strand. Thanks again for joining us on JDSA's Law Talk.

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