An easement is a right to enter and use land that one does not own or possess. An easement is an interest in land. Although an easement does not transfer ownership of the land, it does convey an interest in the burdened property. Therefore, usually it is created by a written document that meets the requirements for a deed. Under some circumstances, however, an easement exists even though there is no deed. One of these circumstances is called prescriptive easements.
A prescriptive easement is established by a claimant’s well-established, long-term use of another’s land. Under the common law, the word “prescription” means obtaining a right to something by using and enjoying it for a period set by statute. In Washington, a person claiming a prescriptive easement must prove that he or she (and/or a predecessor in interest) used another person’s land for 10 years, and the use was (1) hostile; (2) open and notorious; (3) continuous or uninterrupted; (4) over a uniform route; and (5) exclusive.
A prescriptive easement is established once the claimant has fulfilled the above requirements for a period of 10 years. Once established, the prescriptive easement continues in existence unless terminated. Mere non-use does not by itself terminate an easement.
Establishing a prescriptive easement does not require a court judgment; although, as a practical matter, that may be desirable, especially if the landowner disputes the existence of the prescriptive easement. A court judgment may also be desirable because it can be recorded with the County.
In a lawsuit seeking to prove the existence of a prescriptive easement, the claimant must show, by a preponderance of the evidence, the existence of each of the elements discussed above. However, proving hostility would require that the claimant prove a negative (i.e., that the claimant used the land without the landowner’s permission). Some Washington cases therefore hold that if the claimant proves the existence of the other elements, the element of hostility will be presumed. In that case, the burden would shift to the landowner to show that the claimant had permission to use the land.