[WSBARP] Prescriptive easement & subdivision

[Paul Neumiller]

Craig, I don't see any answers so I thought I'd give you my thoughts.  Initially, legally, if the prescriptive easement  ("PE") is used to get to the entirety of the property, then I imagine (read that as no research) the PE would benefit the entire property and a subdivision of the parcel would be irrelevant (could the owner of the servient tenement argue this is an improper expansion or overburdening of the PE?).  But, on a practical note, I think (once again---no research) a PE is only good for the actual use of the servient tenement.  So if the existing road is 12 feet wide, then you only have a PE for 12 feet wide but when you go to the local planning department, you might find that the local development authorities will require a 40 foot wide easement (or something like that.)  So, you might want to approach this backwards, talk to the planning department first and see what they would require AND THEN argue that's the width of the PE.


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From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Craig Sjostrom
Sent: Wednesday, March 2, 2022 9:31 AM
To: 'WSBA Real Property Listserv' <wsbarp at lists.wsbarppt.com>
Subject: [WSBARP] Prescriptive easement & subdivision

Client has a rural parcel that he's living on. He has a record access easement but it's physically unusable. Instead, he's been using an alternate route in and out, for probably 25 years, most likely sufficient to support a prescriptive easement claim.

Client wants to subdivide his property.  If he were to obtain a quiet title decree awarding a prescriptive easement over his existing road, would it be able to serve the existing lot plus a new one subdivided out later? I tend to think not, but am curious as to what others think about it.

Thanks

Craig

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