§7.3 - Creation of Easements by Express Conveyance

• Jurisdiction: Washington

§7.3 CREATION OF EASEMENTS BY EXPRESS CONVEYANCE

An express conveyance, a writing that either grants or reserves an easement, is the most commonly used method of creating easements.

(1) Grant or reservation

A grant is a conveyance of an easement impressed upon property retained by the grantor. A grant might accompany the grant of the dominant estate or it might be the grant of an easement by itself. A reservation, on the other hand, conveys some land and reserves a right-of-way or other easement for use (or benefit) of a dominant estate. Scott v. Wallitner, 49 Wn.2d 161, 299 P.2d 204 (1956); Queen City Sav. & Loan Ass'n v. Mechem, 14 Wn.App. 470, 543 P.2d 355 (1975). An easement in gross might also be either granted or reserved. Sometimes an easement may be attempted to be "reserved" or granted to a third party who is not a party to the deed. This was disallowed in Pitman v. Sweeney, 34 Wn.App. 321, 661 P.2d 153 (1983), as to an easement in gross for unidentified parties. It is believed that the modern view allowing this sort of "reservation" is the better view as to clearly identified third parties or dominant parcels. See RESTATEMENT (THIRD) OF PROPERTY §2.6 (2000).

(2) Requirements

Because an easement is an "interest in land" under state law, it must be conveyed by written deed as required by RCW 64.04.010. Ormiston v. Boast, 68 Wn.2d 548, 413 P.2d 969 (1966). An express conveyance of an easement must be in writing, signed by the parties to be bound, and acknowledged before an authorized person. RCW 64.04.020. The conveyance does not require a seal. RCW 64.04.090- .100. State law requires that a promise to create an easement must also be in writing. Ormiston, 68 Wn.2d 548. The grantor of an easement does not have to use any particular words as long as the intent to convey an easement is communicated and the required formalities set forth above are met. Kalinowski v. Jacobowski, 52 Wash. 359, 100 P. 852 (1909). Arguably, any words are sufficient because the crucial inquiry is whether an easement was intended to be created. Kemery v. Mylroie, 8 Wn.App. 344, 506 P.2d 319 (1973). Merely executing and recording documents entitled "private road & utility documents" that did not contain any granting language was not sufficient to create easements. Zunino v. Rajewski, 140 Wn.App. 215, 165 P.3d 57 (2007).

Practice Tip: Ideally, the granting language in the easement should conform to one of the three statutory forms for deeds

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