Who Carries the Cost of Maintaining or Repairing an Easement When There is No Agreement?
This article is to provide some general background information about what easements are and who carries the costs associated with maintaining and repairing an easement when there is no contract or agreement between the parties.
Background on Easements: An easement is a property interest that provides the easement holder with the right to use, enter, or enjoy real property owned by another. RCW 64.65.010 (4). Common easements include the right to use property for driveways, utility lines, and private roads. Easements can be created in several different ways such as by recorded document, by prescription (almost equivalent to adverse possession), or by necessity.
The “dominant” estate refers to an easement holder that benefits from the easement while the burdened land is referred to as the “servient” estate. RCW 64.65.010(3), RCW 64.65.010(15).
Typical Scenario: Often times, new owners purchase a property without giving much thought to the neighbor’s rights to the easement or their own right to an easement that was conveyed during the sale of the land. Generally, this right to use the easement comes with a cost, literally. Only after years of use and deterioration of the easement (e.g. potholes, scarce gravel, cracked roads, etc.) do the involved parties start thinking about repairing and maintaining the easement. Thus, it is never too early to start thinking about crafting a maintenance agreement for the easement with the users.
What Happens When There is no Written Agreement?
Generally, when there is no specific agreement regarding the maintenance or repair of an easement, the responsibility falls on the dominant estate. As the easement holder of the dominant estate is using the easement usually for ingress and egress, the owner of the dominant estate is responsible for maintaining and repairing the easement. If the servient estate also uses the easement, the cost is typically apportioned between the dominant and servient estate, based on their use. However, if the owner of the servient estate does not use the easement, Washington courts have ruled that he or she has no obligation to maintain the easement. If there are multiple easement holders then each holder will likely only pay their pro rata share of expenditures for road maintenance and repair for his portion of the road easement.
Best to Come to an Agreement for Maintaining an Easement.
Easement holders should be proactive about maintaining and repairing the easement so as not to cause a nuisance on the servient estate, and it is also just the neighborly thing to do.
If there is no agreement between the parties, an easement dispute can easily arise. These disputes are best resolved by negotiations among all users and crafting a maintenance agreement. A written maintenance agreement between users can prevent and minimize any future dispute by detailing the rights, duties, and responsibilities of each party. For example, the maintenance agreement should spell out who is responsible for what costs, expected repairs and maintenance items to be performed, when repairs or maintenance should be performed, and what should occur if a dispute arises.
If you find yourself in an easement dispute in Seattle, Washington or in cities throughout King County, contact our team of real estate attorneys at Holmquist + Gardiner PLLC.
Michelle So
Michelle’s role as an attorney is to always provide her clients with the best possible service. She treats each matter with the utmost care and attention; it is not just a file on her computer, but a client’s business, property, or finance that is involved. She thoroughly understand each of her clients’ disputes, apply the law to the facts, and then communicate what the strengths and weaknesses are of their case so they have a realistic picture of what their options are.
