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What is an Easement?

how are easements created and/or terminated?

An easement is the right to use real property owned by another person for a specific and limited use.

how easements are created

There are several methods for creating easements but the two most common ways in which easements are created are by an “express” act and/or “implication”.
1. Express Easement– An express easement is created by deed, contract, or other written agreement. Express easements are the fastest and most cost-effective way to establish access to a property.

2. Prescriptive Easement– Prescriptive easements are created through the circumstances and facts surrounding the use of land which indicates the parties intended for the easement to exist. In Arizona, implied easements are created after a dominant estate has used the servient estate’s property in a continuous, uninterrupted and open manner for more than 10 years. There is not an official contract or written agreement for prescriptive easements. This means that a party has openly and publicly used land for a full decade without the owner’s consent and obtains rights to that portion of the owned property.

types of easements in arizona

  • Right-of-Way Easements. A right of way easement lets people travel across a property for a specific purpose.
  • Easements of Support. A easement of support prohibits other parties from digging too deep and affecting the foundation of the property’s structures.
  • Easements of “Light and Air”. A easement for rights to light and air prevents neighboring properties from building too high and affecting the view from the dominant estate’s structure(s).
  • Aviation Easements. Aviation easements allow the use of aircraft above a particular property.
  • Easements Pertaining to Artificial Waterways. Easements that pertain to artificial waterways give reasonable access to artificial waterways that run through a neighboring property.

terminating an easement

How Can an easement be terminated? Who Can Terminate the Easement? There are four (4) basic ways an easement can be terminated:

  1. Expiration of an Easement: An easement can be terminated by the expiration of an agreed upon time event. For example, there could be an agreement that an easement will last for 10 years at which time the easement will automatically terminate.
  2. Agreement to Terminate an Easement: Some easements are terminated by agreement of the owner of the easement. Termination by agreement happens when the owner expressly conveys the easement back to the grantor.

    For example, if Simon owns an easement over Garfunkel’s land, and Garfunkel requests that Simon release the easement, Simon may then execute the termination agreement and convey the easement back to Garfunkel. Once this agreement is signed by Simon, the easement in land will terminate.
Old abandoned building and rail.

3. Abandonment of an Easement: Easements can be terminated when the owner abandons his right to the easement. Usually, mere nonuse of an easement is not enough to qualify for termination. An easement may be terminated by abandonment only if the owner makes a clear, unequivocal, decisive act to abandon the easement.

What is a decisive act to abandon an easement? A decisive act to abandon an easement could include creating a new alternate road to enter the property or installing fencing or a wall or some other time of barrier across the easement.

4. Merger of Easement and Land: Easements can be terminated by merger. Under the doctrine of merger, if one party acquires the property subject to and benefited by an easement. The easement will have been said to merge with the other rights held by the owner.

This makes sense, because an easement is the right to cross over the property belonging to another person. However, if you own the land, the easement will merge into the land because it is impossible to have an easement over your own property.

landlocked properties in arizona

In Arizona, it’s not unheard of for a piece of property in an isolated and undeveloped area to not have legal access to the property. Meaning there are not roads leading to the property and there are not Express or Prescriptive easements.

In this scenario, the landlocked owner has several options. If the seller of the Arizona property sold a portion of his or her land without a formal access roadway, then Arizona law implies in the sale of the property an easement across the seller’s remaining property for access–and utilities. If the seller of the land refuses, the landlocked owner can ask a court to enter an order compelling the seller to grant an easement. Because Arizona law generally presumes that transfer of real property includes by implication that there is a way the property can be accessed and used.

private condemnation of properties

A landlocked property may be able to file a “private condemnation” lawsuit, where the landlocked owner can ask a court for just enough of the neighboring property to build and maintain a roadway in order to access the property. The landlocked owner must prove that there is no sufficient alternative access to the property. As in public condemnation, private condemnation requires compensation to the owner of the property being taken.

Conclusion

Understanding easements and how they affect your rights can be very confusing, in particular easements on shared water wells. If you have questions about an easement on your Arizona property then contact the Dunaway Law Group at 480-702-1610 or by sending us a message HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the State of Arizona.

How to Register Drone

How to register your drone with the FAA.

Registering your drone with the Federal Aviation Association. The FAA has actually made the process rather smooth and straight forward.

Why is Drone Registration Necessary?

Plain and simple, the FAA wants every drone registered to increase the safety of people both in the air and on the ground. With more than 1 million drones registered with the FAA they have their hands full trying to keep people safe.

“Registration is all about safety,” says FAA spokesperson Jim Peters. “It provides us with a key opportunity to educate the new generation of airspace users that as soon as they start flying outside, they’re pilots. There are safety implications to how they fly, and there are rules and regulations they must follow. When necessary, registration will help us track down people who operate unsafely.”

Drone Pilots Will be Held Accountable for their Actions

There are countless examples of people flying their drones dangerously close to other aircraft and restricted areas. Drones have interfered with:

● Commercial airplanes,
● Planes and helicopters in the process of fighting wildfires.
● One even landed on the lawn of the White House.

The FAA sees the registration process as an important stepping-stone to a clear, long-term policy making drones safer for everyone.

Penalties for NOT Registering a Drone

It’s difficult for the FAA to enforce these penalties but the fines are steep.
● Civil penalties can reach $27,500!
● Criminal penalties can cost $250,000 and/or three years in prison!

Who Needs to Register their Drone?

Once the registration is complete then the pilot Registering once gives recreational pilots a registration number, akin to a driver’s license number. The recreation drone registration number applies to any drone that you may own and is good for three years. After the registration number expires then you will simply go through the registration process again.

When you buy another drone you’re not required to go through the registration process again because the registration number is for the person and not the drone itself. 

Who Does NOT Need to Register their Drone?

  • If the drone weighs less than 0.55 pounds.
  • If the drone is only flown indoors.
  • If the drone weighs more than 55 pounds it must be registered under the FAA Part 47 Registration.

If the drone is for commercial purposes—which means you’re using your drone to make money, then a different, more cumbersome registration process is required. To learn more about registering your drone for commercial purposes then read our post HERE.

How to Register Your Drone

You’ll register your drone through the FAA’s website at faadronezone.faa.gov. The FAA website makes the registration process very simple.

You’ll also get a registration certificate emailed to you, which you’ll need to print out (or keep handy on your mobile device) and have with you when flying. Once your drone is officially registered you are cleared for takeoff!

Place the Registration Number on Your Drone

Finally, the FAA registration number must be placed on the exterior of the Drone

Evictions and Claims of Ownership

Claims of Ownership in Justice Court Evictions

Eviction lawsuits are designed to address the issue of possession and not ownership. Eviction lawsuits are to provide a summary, speedy and adequate remedy for obtaining possession of premises withheld by tenants, and for this reason this objective would be entirely frustrated if the tenants were permitted to deny the landlord’s title, or to interpose customary and usual defenses permissible in the ordinary action at law.

The merits of the title may not be inquired into in eviction actions, otherwise the action would not afford a summary, speedy and adequate remedy for obtaining possession of the rental property. The limited scope of eviction cases is strictly defined by A.R.S. § 22-201(D) which states;

Justice Court Judges, “have jurisdiction to try the right to possession of real property when title or ownership is not a subject of inquiry in the action. If in any such action the title or ownership of real property becomes an issue, the justice shall so certify in the court record, at once stop further proceedings in the action and forward all papers together with a certified copy of the court record in the action to the Superior Court, where the action shall be docketed and determined as though originally brought in the Superior Court.”

A.R.S. § 22-201(D)

Landlord Frustration

Often, when an eviction case is transferred from the Justice Court to the Superior Court, a landlord will respond, “But my tenant doesn’t own the property! It’s mine! They’re just lying! Why does the judge believe them?”

While a landlords’ frustration is understandable, it is important to remember that the Justice Court Judge is just following the law, it does not mean they believe the tenant. Additionally, it does not mean that the tenant did something right or that we made some kind of a mistake. It simply means the Judge is following the law.

If you need help from an experienced Arizona attorney, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the State of Arizona.

Uncrewed Aircraft Defined

Determining what is, and is not, an “aircraft” is so important because it determines whether it falls under the purview of the International Civil Aviation Organization (ICAO). If it does, then it is held to the same standard as traditional manned aircraft and must comply with all of the same requirements. 

Upon initial review, defining “uncrewed aircraft” seems to be intuitive and somewhat self-explanatory. However, with close examination and careful thought what is and is not “uncrewed” becomes less clear. For example, what if there is not a pilot in the aircraft but the aircraft is being flown by a person standing on the ground, using a remote control? Or must an “uncrewed” aircraft be one that is flown completely autonomously without any human input? 

The plain wording of Article 8 makes clear that the drafters intended “pilotless aircraft” to include aircraft that were remotely controlled, e.g., from the ground (via radio signals); thus, “pilotless aircraft” in the sense that Article 8 refers to an aircraft flown without a “pilot” of Article 32, which provides, “the pilot of every aircraft and the other members of the operating crew of every aircraft engaged in international navigation shall be provided with certificates of competency and licenses issued or rendered valid by the state in which the aircraft is registered”.

When is a uav – “pilotless”?

Defining “pilotless” is of great importance because, “no aircraft capable of being flown without a pilot shall be flown without a pilot over the territory of a Contracting State without special authorization by that state and in accordance with the terms of such authorization. Each contracting State undertakes to ensure that the flight of such aircraft without a pilot shall be so controlled as to obviate danger to the Civil aircraft.” 

The term “without a pilot” was later clarified to mean that an “aircraft which is intended to be operated with no pilot on board shall be further classified as unmanned,” Furthermore, “unmanned aircraft shall include remotely-piloted aircraft.” 

An aircraft is not required to be fully autonomous in order to be uncrewed. An aircraft that is controlled by a person is still “uncrewed”, so long as the person controlling the aircraft is not located within the aircraft. For example, a quad-copter- drone that is controlled remotely by a person on the ground is still an unmanned aircraft. RPA as “an [uncrewed] aircraft which is piloted from a remote pilot station”. 

all aircraft are subject to article 8

All uncrewed aircraft, whether remotely piloted, fully autonomous or combinations thereof, are subject to the provisions of Article 8 and inter alia the ICAO. Annex 7 makes it clear that remotely piloted aircraft (RPA), are simply one type of uncrewed aircraft, and all uncrewed pilotless aircraft, whether remotely piloted, fully autonomous, or combinations thereof, are subject to the provisions of Article 8 of the Chicago convention. Because RPAS are aircraft, ICAO is responsible for their international air travel. They are held to the ICAO standards.

Somewhat ironically, the Chicago Convention, which is considered to be the magna carta of civil aircraft, never actually defines the word “aircraft”. In 1967, in response to advancements in technology, ICAO re-defined “aircraft” as “any machine that can drive support in the atmosphere from the reactions of the are other than the reactions of the are against the Earth’s surface,” 

This change in the definition of “aircraft” came primarily as a response to the invention of “hovercraft”. A hovercraft is a machine that elevates itself off of the ground by pushing in downward to lift the vehicle off of the ground. Because a hovercraft creates lift by pushing air onto the ground it is not capable of “flying” more than a few inches in the air. 

The need for ICAO to redefine one of its most fundamental words, “aircraft” due to development of previously unforeseen technology—the hovercraft—is a perfect example of how quickly technology can change and how it can make prior norms outdated.

The Dunaway Law Group provides consulting to UAS programs across the United States.

Eviction Statistics in Arizona

Believe it or not, there are patterns to evictions in Arizona. There is a distinct pattern in the number of evictions that take place during different times of the year. For instance, each year there is a spike of evictions in January, why is this?

landlords DELAY EVICTIONS DURING HOLIDAYS

Contrary to popular believe most landlords are actually nice people who have feelings too. Many landlords will not evict tenants during the holiday season. Beginning with Thanksgiving and going through New Year’s Day, landlords will often say, “I don’t want to evict someone during the holiday season and so I’ll just wait until the new year to begin the eviction process.”

justice COURTS WILL DELAY THE EVICTIONS

Experienced Arizona landlord – tenant attorneys and property managers know that the justice court judges and constables will do whatever they can to not evict an Arizona resident during the holiday season. After an eviction judgment has been granted by the court the tenants have just five (5) calendar days to vacate! If the Arizona tenant does not vacate within those five (5) calendar days, then we can go back into court and file for a Writ of Restitution. Writs must first be signed by the judge and then delivered to the constable for service.

Judges know that evictions are time sensitive and so they typically sign the order granting the Writ of Restitution almost immediately upon receiving it. However, during the holidays judges are often out of town which means there is no one to sign the writ. Additionally, even when the judges are in the office they are very slow to sign the writs. This is done in an attempt to slow down the actual eviction. Judges “misplace” them or are “too busy” working on other matters to sign the writs immediately. So it can take days before a judge will sign the writ.

Once the writ gets to the Arizona constables there is another big slow down in the eviction process. Similar to judges many constables leave town during the holiday season and so they are not physically able to execute the Writs of Restitution. Furthermore, I have had constables tell me to my face that they won’t execute writs near Thanksgiving or Christmas.

For the reasons mentioned above there has been a build-up of delayed evictions that are then started in January.

arizona EVICTIONS AND TAX REFUNDS

I believe the decreased number of Arizona evictions in February, March, and April are directly correlated to tax refunds. Many people receive large tax refunds that they can use to pay their rent. I remember the first time I passed through those months as an eviction attorney. Sure enough each year when the tax refund season is over then the evictions increase. 

One of the highest months for evictions each year is June. I think the spike during the beginning of summer has something to do with kids getting out of school and families wanting to move. When families are struggling economically and they want to move and they may stop paying rent at their current home and use that would-be rent money and use it as rent and security deposit, etc. at the new property.

pima county eviction statistics

The Pima County Consolidated Justice Court has a webpage with very detailed eviction statistics for its precinct. Click HERE.

If you are a landlord and need help resolving a dispute with a tenant, then please contact the Dunaway Law Group at 480-389-6529 or message us HERE.

* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, PLC limits its practice to the State of Arizona.