Easement Rights

Recently, a client spent considerable time and money to improve the road on a property acquired through a tax lien foreclosure in Arizona. A neighbor then blocked his access to the property through an existing road, claiming that there was no access easement across his land. An easement is a right that is created to permit one person to use the land of another for a specific purpose not inconsistent with a general property in the owner. Fortunately, our client investigated the chain of title prior to making the road improvements and knew that they had an express easement across the land. Our client wrote a polite but stern letter to the neighbor, provided him with the easement and alerted him that he would file a lawsuit if the road obstruction wasn’t removed. The neighbor immediately capitulated.

Generally, there are four categories of easements that Arizona courts have recognized as creating enforceable easement rights: (1) right-of-way easements; (2) easements of support; (3) easements of “light and air”; and (4) easements pertaining to artificial waterways. Granting utilities access for certain purposes, easements prohibiting the construction of certain restrictions, and easements allowing access across someone else’s property are some of the common easements encumbering real estate in Arizona.

An express easement, created by a written legal agreement like a deed or contract, is the fastest, most cost-effective way to establish access to a property. The property burdened by the easement is referred to as the servient estate, and the property benefiting from it is the dominant estate. The easement document should lay out the terms of upkeep and maintenance and who bears the cost burdens. The easement document is recorded with the county recorder and will continue to burden and/or benefit the property and all successive owners.

Even if one does not have an express easement, a property owner may be able to claim an easement by continued use over a period of time through adverse possession also called a prescriptive easement. A person must establish that the land in question has actually and visibly been used for ten years, that the use began and continued under a claim of right, and [that] the use was hostile to the title of the true owner of the land. After a dominant estate has used the servient estate’s property in a hostile, continuous and open manner for the statutorily required number of years, a prescriptive easement may arise. Unlike acquiring title via adverse possession, a prescriptive easement does not require exclusivity.

Even if a property owner does not have an express or prescriptive easement, Arizona law does not allow a neighbor to land lock the owner on his/her parcel. Arizona law allows for easements by necessity to prevent parcels from being landlocked.

Another way to obtain access to a neighbor’s property is through a license agreement. A license is an authority or permission to do a particular act or series of acts upon the land of another without possessing any interest or estate in such land. A license can be terminated where an easement typically cannot without the express permission of all parties involved.

Easement disputes arise because the content, scope and location of alleged easements are not always clear. Prospective landowners are strongly encouraged to review their title reports of a property to determine if there are any easements that are recorded or implied before completing a real estate purchase. Without an easement and if someone enters a neighbor’s property without permission they are trespassing. There are both civil and criminal repercussions for trespassing in Arizona. Trespass is an unauthorized presence on another’s property.

Remember at Hymson Goldstein Pantiliat & Lohr, PLLC, Our Business is Your Peace of Mind®.

Written by Attorney John Lohr, Jr., jll@hgplaw.com

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