A non exclusive private road easement goes through a neighbor's property. It has not been paved or used since 1995. The neighbor argues that it has not been used and therefore they can declare through adverse possession that the non exclusive road easement no longer exists.
Unfortunately, no attorney will be able to answer your question based on the limited information you can provide through this forum.
Your question raises issues of abandonment of an easement more so than it does adverse possession. The language of the easement agreement and the specific facts of your case will drive the analysis of your situation and the answer to your question. You should seek the advice of an attorney knowledgable in property law.
Legal disclaimer: The answer provided: A) is for informational purposes only, B) is not intended to constitute legal advice, C) should not be relied upon in lieu of consultation with an attorney, and, D) does not establish an attorney client relationship. The answer may be different if all of the facts were known.
Adverse possession would not apply to land that the neighbor already owns.
However, the neighbor could seek to revoke the easement due to abandonment.
I am not a WA attorney, laws vary from state to state, therefore you should always consult a local attorney.
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It is doubtful that adverse possession applies under these circumstances. For purposes of this response, I will assume that the access easement is recorded on title. Based upon the other limited facts that you have provided, it appears that the access easement has never been opened (i.e., it has never been improved or otherwise used for its intended purpose to provide access). In Washington, the owner of the property burdened by an easement (also known as the “fee” owner) is legally entitled to make non-interfering, beneficial use of the property burdened by the easement. Because the access easement was never opened, the use of the access easement by the underlying fee owner did not interfere, and was not otherwise inconsistent, with the easement holder’s exercise of their easement rights. Under these circumstances, adverse possession presumably would not apply.
Instead, I agree with Mr. Meyler that these limited facts lend themselves to an analysis of whether the access easement has been abandoned via nonuse. Washington courts have essentially created a heightened burdened of proof to demonstrate that an easement has been abandoned via nonuse. This is likely because many easements are granted for purposes of future development, with no real intent to use them in the short term. Courts are presumably wary of determining that every easement that remains unopened for 10 years has essentially been extinguished via adverse possession.
In Heg v. Alldredge, 157 Wn.2d 154 (2006), for example, the Washington State Supreme Court concluded that mere lapse of time was not sufficient to effectuate abandonment of a recorded access easement. Instead, the court found that acts constituting abandonment must be unequivocal, decisive, and inconsistent with the continued use of the easement. In short, Washington courts are generally inclined to find that an access easement has not been abandoned through mere nonuse and lapse of time.
This answer is provided for informational purposes only and should not be relied upon or construed as legal advice or legal opinion. The answer is based upon limited facts and general principles of law, both of which are subject to change and, therefore, may materially affect any answer given. You should contact an attorney to obtain advice with respect to your particular issue or problem. This answer does not create an attorney-client relationship, nor does it create any kind of legal relationship, duty, or privilege. This attorney is licensed only in the State of Washington.