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  1. #1
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    Oct 2019
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    Question Who Has the Easement and How to Enforce Maintaining It

    My question involves real estate located in the State of: WA

    The parcel I own(A) has the easement portion in the legal description of the title. There is no mention of the word easement.
    The parcel that borders mine(B), to the north, has an easement description in its title.
    There is a third parcel(C) north of B that has no easement rights and is accessed via the county road.

    Think of this like a "d", with a longer straight portion and the county road is at the top of the straight. This would be parcel A, mine.
    Parcel B and C have equal sized property between the county road and the "o" in the "d". Only parcel B has an easement right on the straight portion.

    First, who holds what type of easement, dominant/servant, etc?

    Parcel B's title includes the following;

    "A non-exclusive easement be used in common with others for ingress and egress..."

    It appears that in WA there is a bill, HB1494, that requires all parties to share in the maintenance of the easement. To date I can not get voluntary participation in any maintenance and this easement becomes impassable, due to mud, in the spring. No emergency vehicles could access the homes!!

    What can be done legally?

  2. #2
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    Sep 2010
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    Default Re: Who Has the Easement and How to Enforce Maintaining It

    Easements are use agreements. They don't really have "owners."
    Understand that there's no single "title" to real estate. It's a historical chain of deeds that grant ownership or use from one party to the next.
    I'm assuming at some point in time, there was a grant from whoever owned A to B to allow them the use of A's property for some reason, the easement.

    This would make A the servant tenant and B the dominant tenant.

    C might also be a dominant tenant if that easement grant (or another one) gave rights to C as well as B.

    Your best bet is to go to a real estate attorney and let him do a proper deed search and find out what everybody's rights and responsibilities are.

    HB 1494 is rather irrelevant as it didn't pass in the 2017 session of the legislature (and the 2018 HB 1494 is something completely different). I see no subsequent legislation on the matter.

  3. #3
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    Default Re: Who Has the Easement and How to Enforce Maintaining It

    Quote Quoting flyingron
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    Easements are use agreements. They don't really have "owners."
    Understand that there's no single "title" to real estate. It's a historical chain of deeds that grant ownership or use from one party to the next.
    I'm assuming at some point in time, there was a grant from whoever owned A to B to allow them the use of A's property for some reason, the easement.

    This would make A the servant tenant and B the dominant tenant.

    C might also be a dominant tenant if that easement grant (or another one) gave rights to C as well as B.

    Your best bet is to go to a real estate attorney and let him do a proper deed search and find out what everybody's rights and responsibilities are.

    HB 1494 is rather irrelevant as it didn't pass in the 2017 session of the legislature (and the 2018 HB 1494 is something completely different). I see no subsequent legislation on the matter.
    While most of what you posted is correct and I agree with you, your statement that easements are use agreements is not correct. While there can be agreements to use another's property and one may call it an easement, they are usually temporary or in gross. An easement that is appurtenant is a non possessory interest in the use of another's land. It goes with the land, it attaches to the land in perpetuity. Therefore, it is a title interest in the land and not an agreement in legal terms.

    Quote Quoting pacnw
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    My question involves real estate located in the State of: WA

    The parcel I own(A) has the easement portion in the legal description of the title. There is no mention of the word easement.
    The parcel that borders mine(B), to the north, has an easement description in its title.
    There is a third parcel(C) north of B that has no easement rights and is accessed via the county road.

    Think of this like a "d", with a longer straight portion and the county road is at the top of the straight. This would be parcel A, mine.
    Parcel B and C have equal sized property between the county road and the "o" in the "d". Only parcel B has an easement right on the straight portion.

    First, who holds what type of easement, dominant/servant, etc?

    Parcel B's title includes the following;

    "A non-exclusive easement be used in common with others for ingress and egress..."

    It appears that in WA there is a bill, HB1494, that requires all parties to share in the maintenance of the easement. To date I can not get voluntary participation in any maintenance and this easement becomes impassable, due to mud, in the spring. No emergency vehicles could access the homes!!

    What can be done legally?
    The word easement does not have to appear in your deed to establish that an easement was created for use by another property. Easements can be created by express grants or by plats when land is subdivided.

    As has already been posted, the easement is on your land so you are the servient estate and the neighbor is the dominant estate. It is non-exclusive meaning that you can also use the land (the easement) for whatever you which as long as it does not impede the use of the easement by the dominant estate.

    That part of B's deed that says, "A non-exclusive easement be used in common with others for ingress and egress..."could mean that C also has easement rights. How those rights were established is something you have to research. It could be through a recorded subdivision plat.

    In most states, if the easement grant is silent on the issue of maintenance, it is the dominant estates that are responsible to maintain the easement. And if you also use what is considered the easement, some courts require the servient estate to pay a fair share of the maintenance.

  4. #4
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    Default Re: Who Has the Easement and How to Enforce Maintaining It

    I did not really understand your "D" analogy. You stated the that "easement" becomes impassable during the Spring. Are any of the three of you unable to access your properties in the Spring when the easement becomes impassable?

  5. #5
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    Default Re: Who Has the Easement and How to Enforce Maintaining It

    Quote Quoting budwad
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    While most of what you posted is correct and I agree with you, your statement that easements are use agreements is not correct. While there can be agreements to use another's property and one may call it an easement, they are usually temporary or in gross. An easement that is appurtenant is a non possessory interest in the use of another's land. It goes with the land, it attaches to the land in perpetuity. Therefore, it is a title interest in the land and not an agreement in legal terms.



    The word easement does not have to appear in your deed to establish that an easement was created for use by another property. Easements can be created by express grants or by plats when land is subdivided.

    As has already been posted, the easement is on your land so you are the servient estate and the neighbor is the dominant estate. It is non-exclusive meaning that you can also use the land (the easement) for whatever you which as long as it does not impede the use of the easement by the dominant estate.


    That part of B's deed that says, "A non-exclusive easement be used in common with others for ingress and egress..."could mean that C also has easement rights. How those rights were established is something you have to research. It could be through a recorded subdivision plat.
    Parcel C has zero legal rights to this easement based on the info I have found.

    In most states, if the easement grant is silent on the issue of maintenance, it is the dominant estates that are responsible to maintain the easement. And if you also use what is considered the easement, some courts require the servient estate to pay a fair share of the maintenance.
    Then parcel B should legally be maintaining the easement and I could, not must, assist?
    I have contacted a few lawyers and had a consultation with one. They all want money before they will provide any definitive answer.

    Quote Quoting llworking
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    I did not really understand your "D" analogy. You stated the that "easement" becomes impassable during the Spring. Are any of the three of you unable to access your properties in the Spring when the easement becomes impassable?
    Parcel C has access from the county road and no need to access from the easement.

    Parcels A & B have to park at the county road and walk back to their property, 1/2-3/4 of a mile.

  6. #6
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    Default Re: Who Has the Easement and How to Enforce Maintaining It

    Quote Quoting pacnw
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    I have contacted a few lawyers and had a consultation with one. They all want money before they will provide any definitive answer.



    Parcel C has access from the county road and no need to access from the easement.

    Parcels A & B have to park at the county road and walk back to their property, 1/2-3/4 of a mile.
    Is the property for parcels A & B their primary residence or is it property for some other kind of use?

    I would guess that if C had any kind of easement that C would likely agree to abandon it since C doesn't need it. As far as A and B are concerned I cannot comment more unless I know more about their usage of the property.

  7. #7
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    Default Re: Who Has the Easement and How to Enforce Maintaining It

    Quote Quoting llworking
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    Is the property for parcels A & B their primary residence or is it property for some other kind of use?

    I would guess that if C had any kind of easement that C would likely agree to abandon it since C doesn't need it. As far as A and B are concerned I cannot comment more unless I know more about their usage of the property.
    Primary residence for both of us.

  8. #8
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    Default Re: Who Has the Easement and How to Enforce Maintaining It

    Quote Quoting pacnw
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    Primary residence for both of us.
    Ok, then it needs to be maintained and you both should likely share equally in the maintenance. If the other party won't do so, then you probably need to take it to court.

  9. #9
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    Default Re: Who Has the Easement and How to Enforce Maintaining It

    Yes, usually the dominant tenant is responsible for maintaining the easement to satisfy his use. Of course, since it's non-exclusive, the other users (namely you) should help.
    Again, you need to talk to a lawyer. He can read all the deed history and tell you just who is allowed what and who is responsible for what. Often, a letter from a lawyer laying out the legal principles works out better than casual requests. If not, the lawyer can start the next step in the process.

  10. #10
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    Default Re: Who Has the Easement and How to Enforce Maintaining It

    Quote Quoting pacnw
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    Then parcel B should legally be maintaining the easement and I could, not must, assist?.

    Not exactly so. First, as I already posted, that when a grant of an easement is silent on the maintenance and repair of a non-exclusive easement a court can and may fashion equitable remedies to resolve the dispute. Since there is no language in the easement grant you posted about (and no subsequent maintenance agreement), it would take a court action to determine who will pay for the maintenance and repair if the dominant and servient estates cannot come to agreement. Assuming that you use the easement for ingress/egress to your property (even though it is your property) and parcel B also uses that portion that you use, you could be held to contribute to the maintenance and repair.


    There are two controlling cases in WA on the equitable remedies for maintenance and repair when the grant is silent.
    https://casetext.com/case/bushy-v-weldon

    https://scholar.google.com/scholar_c...en&as_sdt=4,48

    Quote Quoting llworking
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    Is the property for parcels A & B their primary residence or is it property for some other kind of use?

    I would guess that if C had any kind of easement that C would likely agree to abandon it since C doesn't need it. As far as A and B are concerned I cannot comment more unless I know more about their usage of the property.
    The use of the property has no bearing on the issue here. It could be a residence or a vacant lot. The easement attaches to the land regardless of the use.

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