[WSBARP] Asking for an express easement when a prescriptive easement appears to already exist

[Kinnon]

Why not simply state your legal position in the letter (as gentle as
possible) and offer to pull together the easement and a road maintenance
agreement at no cost as an alternative? 

 

Kinnon W. Williams 
Williams & Williams, PSC 
18806 Bothell Way NE 
Bothell, Washington 98011 
Phone: 425.486.8138 
Fax:     425.485.8449 
 <mailto:kww at williamspsc.com> kww at williamspsc.com 
 <http://www.williamspsc.com> www.williamspsc.com 

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From: wsbarp-owner at lists.wsbarppt.com
[mailto:wsbarp-owner at lists.wsbarppt.com] On Behalf Of David Faber
Sent: Wednesday, April 09, 2014 3:30 PM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] Asking for an express easement when a prescriptive
easement appears to already exist

 

Good afternoon,

 

I have a client who is seeking an easement across two adjoining pieces of
property, each owned by a different person. The easement is for a dirt
access road and is only necessary because he needs to be able to insure
his access point (in other words, the servient properties aren't trying to
block the access road, nor have they even said anything to my client about
his use of the land). My client has been using the road for over 40 years,
and the elements of a prescriptive easement appears to have been easily
met long ago. However, for the sake of judicial economy and to prevent
unnecessary acrimony, I am thinking of counseling my client to seek an
express easement from his neighbors. My concern, however, is that by
taking this step the court *might* consider this an admission by my client
that he doesn't consider the hostility prong to have been met. I know
that, if a prescriptive easement exists, it has likely existed for 30+
years, and therefore him requesting an express easement now should have no
impact on his established prescriptive easement. Because proving hostility
vs. permissive can be somewhat difficult, however, is it possible that
requesting an express easement might undermine my client's claim that a
prescriptive easement exists?
  


Best,

David J. Faber

Faber Feinson PLLC

210 Polk st., ste. 4B

Port Townsend, WA 98368
(360) 379-4110

 

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