Washington Supreme Court joins courts that reverse the presumption of permissiveness for prescriptive easements

In general, possession of property owned by another is presumed to be non-permissive. Thus, one can obtain property by adverse possession if one actually possess real property in a visible manner for the statute of limitations without regard to proof of lack of permission. Many courts apply the same presumption to claims for prescriptive easements. The reason is that some border cases (such as use of a strip of property for driveway purposes) may involve both an adverse possession claim and a prescriptive easement claim and it is thought to be irrational to reverse the presumptions for the two doctrine.

A significant minority of courts however now reverses the presumption when a prescriptive easement is claimed on the ground that neighbors often allow neighbors to make limited uses of their property and that such neighborly accommodations are generally informal grants of permission for such uses. It seems wrong to punish an accommodating neighbor by a loss of right to control one's own property just because one has been hospitable to neighboring incursions. The Washington Supreme Court has now joined this minority group by ruling that there is a presumption that limited uses of a neighbor's property are permissive, thus defeating a claim for a prescriptive easement unless the claimant can overcome the presumption with evidence that the record owner sought to prevent the intrusion. Gamboa v. Clark, 348 P.3d 1214 (Wash. 2015).