Summary of Substitute Bill:

A new chapter is created in Title 64 of the Revised Code of Washington.

Definitions.

For the purposes of this chapter, the following definitions apply:

"Easement" means a nonpossessory interest in the land of another that entitles the holders of an interest in the easement to a private road for ingress and egress, embodying the right to pass across another's land.
"Holders of an interest in an easement" or "holder" means those with a legal right to use the easement, including the owner of the land across which the easement passes if the owner of the land has the legal right to use the easement.

Maintenance of Easements.

The holders of an interest in an easement must maintain the easement. Nothing prohibits holders from making agreements as to the allocation of maintenance and costs, including agreements that allocate the obligations to fewer than all holders.

How costs are shared if there is an agreement. If an agreement as to the allocation of maintenance and costs exists, the cost of maintaining an easement must be shared as provided in the terms of the agreement. A maintenance agreement may be recorded with the county auditor in the county or counties in which the easement is located. A failure to record does not affect enforceability of the agreement among the parties to the agreement and any other person with notice of the agreement.

How costs are shared in the absence of an agreement. In the absence of a maintenance agreement, each holder must share the reasonable and necessary cost of maintaining the easement in proportion to each holder's use of the easement. Each holder is solely responsible for repair of any damage to the easement caused by his or her own negligence or abnormal or excessive use.

Determining proportionate use and cost. Unless inconsistent with an agreement between the holders, the following factors may be considered to determine proportionate use and resolve conflicts: the frequency of use by each holder; the scope of use by each holder; and the size and weight of the vehicles of each holder. The scope of use by each holder may be determined by dividing the distance of total usage of all holders into the distance of total usage of each holder. Unless inappropriate, the costs for normal and usual maintenance, as well as the costs for repair of an easement damaged by natural disasters or other events for which all the holders are blameless, may be shared on the basis of percentages resulting from dividing the distance of total usage of all holders into the usage distance of each holder.

Civil Cause of Action.

A civil cause of action for money damages, specific performance, or contribution may be brought by a holder or holders, either jointly or severally, against another holder who:

fails to maintain the easement according to an agreement; or
fails to pay the holder's proportion of the cost for maintaining the easement, determined in accordance with the statutory provisions regarding proportionate use and individual responsibility for damage caused by negligence or abnormal or excessive use, within 60 days after receiving a written demand sent via certified mail.

Unless the matter is subject to mandatory arbitration under the mandatory arbitration laws, any holder may apply to the court with jurisdiction over the matter for appointment of an impartial arbitrator to apportion the maintenance costs pursuant to the Uniform Arbitration Act. The application for arbitration may be made before, during, or after performance of the maintenance work.

The court may order any equitable relief that may be just under the circumstances. The prevailing party is entitled to recover all court costs, arbitration fees, and reasonable attorney fees.

Nothing in the chapter imposes a maintenance obligation on a holder based on the maintenance provisions in an instrument creating the easement if the holder is not a party to the instrument, whether or not the instrument is recorded, after the holder ceases to use the easement.

Application.

All easements existing on or created after January 1, 2019, are subject to the statutory provisions in this chapter, except that:

the statutory provisions in this chapter are inapplicable to any entity regulated under the Forest Practices Act, or any railroad company or affiliate, or any easement or right-of-way held by any agency or state department, state political subdivision, public service company, or any public or private utility provider; and
nothing authorizes the impairment of a maintenance agreement existing on or before January 1, 2019.

A severability clause is included.