Permissive Neighbors Right Next Door

Now there’s a concept. On April 16, 2015, the Supreme Court of Washington heard Gamboa v. Clark, a prescriptive easement case where title to a shared gravel roadway was at issue.

The Court restated the elements necessary to obtain a prescriptive easements – the claimant must use another person’s land for a period of 10 years and show (1) he or she used the land in an “open” and “notorious” manner, (2) the use was “continuous” or “uninterrupted,” (3) the use occurred over “a uniform route,” (4) the use was “adverse” to the landowner, and (5) the use occurred “with the knowledge of such owner when he was able to assert and enforce his rights.”

The element the Court focused on in this case was “adversity.” That is, was as the Gamboas use of the Clarks’ dirt road adverse to the Clarks’ interests in the dirt road. The court started its analysis with the presumption that when someone uses a private shared roadway, with nothing else showing, that the person does so with the true owner’s permission. The court confirmed earlier policy rulings that there is a presumption of permissive use when there is a reasonable inference of neighborly accommodation. Therefore, the burden is on the party asserting a prescriptive right to show that her or his use was under a claim of right and adverse to the true owner of the land.

The court held that the presumption of permissive use applies to unenclosed, as well as enclosed or developed land in which there is a reasonable inference of neighborly sufferance or acquiescence. The court stated that this reasonable inference is a fairly low bar. To defeat the presumption of permissive use facts must demonstrate that the use was adverse and hostile to the rights of the owner. Satisfying the element of hostility requires “evidence that a claimant interfered with the owner’s use of their land in some manner.”

As with adverse possession cases, a claimant’s “state of mind” is irrelevant. Proving the right to an easement by prescription in court requires a very detailed analysis of the specific facts of the case with emphasis of history and use of the strip of land in question. Unless a claimant can prove that his or her use interfered with the true owner’s use of the property, the claim will likely fail.

Lee Brettin

Lee Brettin is a Seattle lawyer with a practice focused on real estate and business law.

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