This article discusses certain legal issues on how courts interpret written easements, and provides some highlights on Washington easement law. The quotations below all come from various Washington appellate and federal court decisions.

An “easement” is a nonpossessory right to use the land of another; in other words, the right to use or restrict the use of another person’s real property or land. The easement represents a burden on the property, and is known as the servient estate. The person who benefits from the easement is called the dominant estate holder, and the actual property owner who makes the servient estate available as an easement is known as the easement grantor.

The owner of the servient estate may use their property in any manner that does not unreasonably interfere with the dominant estate holder’s easement rights. However, the servient estate owner’s use of the property subject to an easement must yield to the dominant estate owner’s exercise of their easement rights, and the dominant estate owner is entitled “to perform all acts which are reasonably necessary to full enjoyment” of the easement.

Because an easement is an interest in land, it is subject to Washington’s statute of frauds, RCW 64.04.010, which requires that “every conveyance of real estate, or interest therein” and “every contract creating or evidencing any encumbrance upon real estate, shall by deed.” To meet the statute’s requirements, the easement must be in writing, signed by the grantor, and acknowledged by a notary. The easement must contain a description of a specific servient estate, although the exact location of the easement on the servient estate does not necessarily have to be identified, provided that the easement includes a mechanism for its future location.

A written easement is also called an express easement. Express easements may be created by either grant or reservation. There are two general types. An easement “in gross” is one that benefits an individual, whether or not he owns another tract of land. In contrast, if the beneficiary of the easement is another tract of land, regardless of who owns it, then the easement is “appurtenant.” Easements in gross are not favored; the general presumption is that all easements are appurtenant. “Easements appurtenant become part of the realty which they benefit. Unless limited by the terms of creation or transfer, appurtenant easements follow possession of the dominant estate through successive transfers.”

The rules of contract interpretation apply to the interpretation of an easement. Courts determine the extent of the easement right and the intention of the parties from the terms of the grant. Because of the permanent nature of real property, the legal effect of a conveyance often outlasts the lifetimes of both the grantor and grantee. Thus, with the passage of time, evidence of the circumstances surrounding the transfer will become both increasingly unreliable and increasingly unobtainable. “Accordingly, the language of the written instrument is the best evidence of the intent of the original parties. . . .” Newport Yacht Basin Ass’n of Condo. Owners v. Supreme Nw., Inc., 168 Wn. App. 56, 65, 277 ‎P.3d 18, 24 (2012) (discussing a quit claim deed).

No particular words are necessary to create an easement, so long as the language shows an intent to grant in terms that are certain and definite. The intent of the parties is determined from parsing the easement as a whole. When specific, unambiguous language creates an easement, that language determines the ‎permitted uses and the parties’ intent as to its scope.‎ If an easement’s language is unambiguous, its meaning is determined by reference to the language in the document, and extrinsic evidence will not be considered. An easement is unambiguous when its terms are not uncertain or capable of being understood as having more than one meaning.

In the limited instance when an easement’s language is ambiguous and extrinsic evidence may be considered to interpret it, such evidence does not include: (1) evidence of a party’s unilateral or subjective intent as to the meaning of a contract word or term; (2) evidence that would show an intention independent of the instrument; or (3) evidence that would vary, contradict, or modify the written word. An easement is not ambiguous merely because the parties may suggest opposing meanings or dispute ‎the legal effect of an unambiguous provision. ‎

“The law assumes parties to an easement contemplated changes in the use of the easement ‎that may not have existed at the time of the grant.” Thus, normal changes in the manner of use and resulting ‎needs of the dominant estate-holder will not, without adequate showing, constitute an ‎unreasonable deviation from the original grant of the easement. For example, an access easement written in the 1800s, when horses were the primary means of transportation, would likely be interpreted to allow use by automobiles as a natural evolution in the common means of transport.

However, a significant expansion of an easement over time is permitted only if its express terms manifest a clear intention by the original parties to modify the initial scope based on future demands. Requiring the easement to articulate the scope of future expansion ensures that subsequent purchasers of the servient estate have clear actual or constructive notice of the possibility of an increased encumbrance based on future demands.

Washington easement case results include the following practice pointers:

• • The parties to an easement should think strategically and consider the long-term plans for the servient and dominant properties so that the scope of the easement grant fully captures the intent and expectations of the original grantor and grantee.
  • The parties should ensure that the easement complies with RCW 64.04.010 and is in writing, adequately identifies the servient estate, is signed by the grantor, and is notarized.
  • The parties should aim to create a clear and unambiguous document. The use of sketches or other exhibits, in addition to written language, may help to clarify what is intended.
  • The parties could consider using an integration clause or other language that calls for interpretation using the language within the document to try to limit a future finding of ambiguity or the use of extrinsic evidence to determine the original parties’ intent.
  • If the parties believe that a future increase in the intensity or type of use of an easement is possible, the easement could acknowledge that the grant allows for those possibilities. For example, if a current easement is for a 20-foot road to a single home, but future development of the dominant estate is contemplated, the easement could acknowledge that in the event of future development, the easement accommodates the additional lots and expansion of the road width to meet the then-current road standards necessary to support the increased level of use.

Schwabe land use and real estate attorneys are experienced in drafting and interpreting easements. If you have any easement questions, please contact Schwabe attorneys Julie Wilson-McNerney, Milt Reimers, or Patrick Mullaney.

This article summarizes aspects of the law and does not constitute legal advice. For legal advice for your situation, you should contact an attorney.