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

[David Faber]

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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