Prescriptive Easement

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.

What constitutes a prescriptive easement?

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.

  1. Hostility: Despite the common notion that hostility might imply some sort of adverse mental intent by the claimant, subjective intent is in fact irrelevant. All that is necessary is that at the time the use began the claimant must not have the landowner’s permission. Even if initially the claimant had the landowner’s permission, the use may become hostile if that use takes on such a nature that a landowner would reasonably understand that the claimant is treating the use as his or her right.
  2. Open and notorious use: The use must not be concealed. The landowner need not have actual knowledge of the use but must have been able to discover the use through reasonable diligence.
  3. Continuous or uninterrupted use: The use must be as continuous as would be expected if the claimant had an express (i.e., written) easement for that use. So, for example, a prescriptive easement for utility lines would probably require the lines to be in place at all times. However, a prescriptive easement for ingress and egress to a vacation beach house would not require constant use; use of the land to access the beach house whenever the beach house is being used should be enough – even if that is only a few times a year. It may be possible for the landowner to interrupt the use prior to the expiration of the 10 year prescriptive period, in which case this element would not be met.
  4. Uniform route: Many Washington cases say that the claimant must show that the use occurs over a uniform route. This suggests, for example, that a prescriptive easement for ingress and egress would require that the claimant travel across the same portion of the land to access his or her own land. It is not clear, however, whether this element of a prescriptive easement has been decisive in any Washington case.
  5. Exclusive use: Exclusivity does not require that claimant prevent the landowner or other parties from using the easement area. It only means that there is no unreasonable interference with the use established by the claimant. For example, if the landowner fences in an area being used by the claimant for ingress and egress, that would interfere with the use and there would be no exclusivity.

How is a prescriptive easement established?

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.