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  1. #1
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    Jun 2020
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    Unhappy Can an Access Easement Be Used As a Utility Easement

    My question involves real estate located in the State of: Washington. We have purchased 12.5 acres that are seemingly landlocked regarding utilities. We have an access easement thru our neighbor's lot however he will not grant us a utility easement. We cannot build without it. The city is requiring a new utility easement to approve hook-ups. The easement in no way affects the use of neighbors land but would pass alongside the access road. We have made multiple offers to no avail. Wondering how likely a legal action would end up in our favor or if there are any other options other than selling.

  2. #2
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    Mar 2013
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    Default Re: Can an Access Easement Be Used As a Utility Easement

    If you need an easement by necessity, you are likely to win.

    Consult an attorney.

  3. #3
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    Default Re: Can an Access Easement Be Used As a Utility Easement

    Quote Quoting adjusterjack
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    If you need an easement by necessity, you are likely to win.

    Consult an attorney.
    An easement by necessity is something you really need to research because you time and time again recommend that someone litigate to obtain one when in fact, has nothing to do with the posted circumstances. In this case, OP has a granted easement for ingress and egress. So an easement of necessity does not apply. An easement of necessity has legal requirements.

    The implied easement arises by inference of law when certain facts concerning the conveyance of land are found by the court. There are two general fact patterns: (1) prior to severance of land there exists a quasi-easement' for the benefit of one part of the land to the detriment of the other; (2) after conveyance of part of a tract of land, the grantor or grantee has no access to land respectively retained or conveyed. The easement arising from the former will be termed an "implied easement" while the latter will be referred to as a "way of necessity." Though both easements are implied, the two will be distinguished by the above terminology to facilitate discussion.
    In other words, both tracts of land had to be under common title before there was a severance of title and one of the properties was left with no access or some other needed easement for the complete enjoyment of the property that (the use of which) existed before the land was subdivided.

    Here we have OP with an apparent granted easement for access and the grant did not address the use for utilities. So in a case like this one would patrician the court to extend the easement to include utilities which most state courts are willing to do in the 21st century . After all, there is no sense in having access to developable property if you can't have utilities.

    Quote Quoting flanaganx6
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    My question involves real estate located in the State of: Washington. We have purchased 12.5 acres that are seemingly landlocked regarding utilities. We have an access easement thru our neighbor's lot however he will not grant us a utility easement. We cannot build without it. The city is requiring a new utility easement to approve hook-ups. The easement in no way affects the use of neighbors land but would pass alongside the access road. We have made multiple offers to no avail. Wondering how likely a legal action would end up in our favor or if there are any other options other than selling.
    What does the granted easement actually say if you care to post it.

    If you haven't already done so, consult with a local land use attorney to explore your options. The likelihood of having the access easement expanded by the court to include utilities is a good one IMO. It will cost you some substantial money to bring this before a court.

  4. #4
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    Jun 2020
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    2

    Default Re: Can an Access Easement Be Used As a Utility Easement

    Here is a summary of our current easement description:
    The grantors, for good and valuable consideration, the receipt of which is hereby acknowledged, hereby grant... (owner names), their successors and assigns, a perpetual, non-exclusive easement across, to, along and upon Grantors' property, situated in... (county and legal description). The above-described easement is for ingress and egress to the properties described and incorporated herein by this reference. The easement is a perpetual and appurtenant easement. Said easement is for the use of Grantees and Grantees' agents, invitees, assigns and successors in interest and shall be for normal pedestrian and vehicular traffic to and from the properties described.


    Thank you for your help. I will be searching for a land use attorney today.

  5. #5
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    Nov 2013
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    Default Re: Can an Access Easement Be Used As a Utility Easement

    Quote Quoting flanaganx6
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    The easement in no way affects the use of neighbors land but would pass alongside the access road. .
    It could also run under the access road with no further burden on the servient estate.

    Quote Quoting flanaganx6
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    We have made multiple offers to no avail.
    Perhaps the prospect of your neighbor having to defend against a quiet title law suit compared to accepting one of your offers will tip the balance in your favor.

    Let us know how you make out.

    The language you posted does not address utilities. It grants over and across the land of your neighbor. I does not say over, across, and under the land. Without some other language that addresses utilities or under the land you must establish your rights to use the easement for utilities through a quiet title law suit. The exact language of an express grant is parsed by the common meaning of the words. You only have an easement over and across the land for ingress and egress.

    But what really matters in the common law of easements is what the grantor and grantee had in mind at the time the grant was made. If it was understood that your land would be developed then it is possible that whoever drafted the easement language was deficient in its drafting to include utilities.

    On the other hand, if your land was never to be developed then the grantor may have purposely only granted access (for hunting perhaps and not development). So all the facts matter about your predecessors and the neighbor's predecessors as to the intentions.

    You also have to go back to all the deeds since the land was first sold to see if the grant language is the same in all the deeds. It often happens that parts of a grant are omitted (for whatever reason) in subsequent deeds.

    The only deed that matters is the first to contain the grant.

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