Terminate an Easement

Can an Easement be Legally Terminated

Can an easement be terminated? An easement is a right cross over someone else’s property. To answer the question, yes. In Arizona, you can terminate an easement in one of four basic ways.  

These are four basic ways to terminate an easement.

  • Expiration of an Easement: In Arizona, an easement can be terminated by the expiration of an agreed upon time event. on I agreement my abandonment via the doctrine of merger some easements are granted for a finite period of time when the time. Is not The easement is set to expire easements of this sort are said to terminate by expiration because they are granted. 10 years at the end of the 10 year period easement will terminate.
  • Agreement to Terminate an Easement: In Arizona, 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, then the easement in Arizona land will terminate.
Old abandoned building and rail.
  • Abandonment of an Easement: In Arizona, an easement 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. In Arizona, 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? A decisive act to abandon an Arizona easement could include creating a new alternate road to enter the property or putting fending/wall or some other time of barrier across the easement.

  • Merger of Easement and Land: In Arizona, an easement may be terminated by the doctrine of 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. Again, in Arizona, these are the four methods to terminate an easement. Understanding easements and how they affect you can be very confusing and so f you have questions about an easement on your Arizona property then contact the Dunaway Law Group at 480-389-6529 or by sending us a message HERE.

Disputes of Real Estate Ownership

Arizona state law and Arizona case law are clear that eviction cases, also known as, Forcible Entry and/or Forcible detainers) are designed to only address the issue of possession and not any issues addressing the ownership of the property involved. The limited scope of a forcible entry and detainer action has been strictly defined by Arizona statute. A.R.S. § 12-1177(A) states in relevant part:

On the trial of an action of Forcible Entry or Forcible Detainer, the only issue shall be the right of actual possession and the merits of title shall not be inquired into.

Evidence offered to the Superior Court to show anything other than who is entitled to possess the property will be excluded from an eviction hearing. So, if a defendant wants to make a claim for ownership of the rental property then they must file a quiet title action and not raise the issue during an eviction hearing.

Proof of Ownership 

The Superior Court’s inquiry into property ownership is limited to the extent that Plaintiff holds title to the property in dispute. If the Plaintiff/Landlord’s name appears on the trustees’s deed then the Court should not inquire into ownership any further.

The issuance of the Trustee’s Deed to Plaintiff is conclusive evidence that all statutory requirements for the Trustee’s Sale were satisfied and that Plaintiff has the right to possession of the Property.

A.R.S. § 33-811(B) further provides:

…the Trustee’s deed shall raise the presumption of compliance with the requirements of this chapter relating to the exercise of the power of sale and the sale of the trust property, including recording, mailing, publishing, and posting of the notice of sale and the conduct of the sale.

The Courts have held that litigation as to the validity of title “would convert a forcible detainer action into a quiet title action and defeat its purpose as a summary remedy.” Curtis v. Morris, 186 Ariz. 534, 535, 925 P.2d 259, 260 (1996).

For example, in Merrifield v. Merrifield, 95 Ariz. 152, 154, 388 P.2d 153, 155 (1963), the plaintiff held title to property pursuant to quitclaim deed which was valid on its face. The lower court nonetheless inquired into the merits of that title and refused to find the defendant guilty of forcible entry and detainer. The Arizona Supreme Court reversed the lower court’s ruling because plaintiff was entitled to possession as the title holder and pursuant to A.R.S. § 12-1177, the trial court was prohibited from considering the merits of the plaintiff’s title. Accordingly, any evidence offered by Defendants to raise extrinsic issues or disprove Plaintiff’s title must be excluded.

In another case demonstrating the Superior Courts inability to inquire into ownership in a forcible detainer (see Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 P.2d 394 (1946)), the Arizona Supreme Court stated: “[T]he statutes of this state make that very plain and indicate quite clearly that the right to actual possession is the only issue to be determined in such an action.” Id. at 204, 397. The Court also discussed the legislative intent in limiting the scope of a forcible entry and detainer action stating:

The object of a forcible entry and detainer action is to afford 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 defendant were permitted to deny his landlord’s title, or to interpose customary and usual defenses permissible in the ordinary action at law. And for the same reason, the merits of the title may not be inquired into in such an action, for if the merits of the title and other defenses above enumerated were permitted and the court heard testimony concerning them, then other and secondary issues would be presented to the court and the action would not afford a summary, speedy and adequate remedy for obtaining possession of the premises.

Id. at 204-05, 397. Because the trustee’s deed is conclusive evidence of Plaintiff’s title under A.R.S. § 33-811(B), and because the court is prohibited from inquiring into the merits of that title under A.R.S. § 12-1177(A), judgment must be rendered in favor of Plaintiff regardless of any defense of ownership the Defendants may raise.

Ownership Disputes and Eviction in the Justice Court

The ownership of property and their interaction with evictions can become very complex. The above article discusses issues of ownership disputes and evictions in the Superior Court, however, the rules that apply to ownership disputes and evictions in the Justice Court (where most evictions take place) are completely different. Follow this link to read about a blog post I wrote that discusses ownership disputes and evictions in the Justice Court.

If you need help from an Arizona real estate attorney then contact Clint Dunaway at clint@dunawaylg.com or 480-389-6529.

In Arizona, residential eviction cases are usually brought in the Justice Court system. A Judge (also known as a Justice of the Peace in the Justice Court system) has the authority to evict tenants for a myriad of reasons. They can evict for; nonpayment of rent, material breach of lease agreement, wrongful holdover, etc. However, a Justice Court judge cannot make decisions or even hear arguments over ownership of the property in an eviction case.

A.R.S. § 22-201(D) addresses this issue:

Justices of the peace 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(F) adds further clarification:

In actions between landlord and tenant for possession of leased premises, the title to the property leased shall not be raised nor made an issue.

This means that if a Defendant/Tenant tells the Justice Court Judge they have an ownership interest in the property then the hearing will immediately be stopped and the matter forwarded on to the Superior Court.

Occasionally when a case is sent to the Superior Court a landlord will respond, “but my tenant doesn’t own the property! It’s mine! They’re just lying! Why is the judge believing them? What could have been done to prevent this?”

While the landlords’ frustration is understandable it’s important to remember that the Justice Court judge is just following the law. Just because a Justice Court Judge moves a case into the Superior Court 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.

Learn about what happens when an eviction case is sent to the Arizona Superior Court because the tenant claims an ownership interest. If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at clint@dunawaylg.com or 480-389-6529.

Discovery in Lawsuit

During a lawsuit each party has the opportunity to request formal “discovery” from the opposing party. These requests for discovery is accomplished by sending the opposing party four different “packets” requesting certain types of information.  

I have included a copy of our initial drafts requesting information from the opposing party for your review and feedback. Pay particularly close attention to dates, names, and places to make sure that they are factually correct.

stack of legal documents

Uniform Interrogatories: Is a series of questions that are listed in the Arizona Rules of Civil Procedure. Depending on the type of case there is a set of different questions for the opposing party.

Non-Uniform Interrogatories: Give us the opportunity to write our own questions for the opposing party. For example, we could ask the opposing party, “Explain in detail why you did not make the payments as agreed”.

Request for Admissions: This allows us the opportunity to present statements to the opposing party in a way where they should respond in the affirmative. If they do not respond in the affirmative then they must provide an explanation of why they denied the statement. For example, we could write a statement, “Admit you did not pay back the money as agreed”. They are forced to “admit” the statement or deny it and then give a detailed explanation as to why they denied the statement.  

Request for Documents: We are given the opportunity to request up to 10 different sets of documents from the opposing party.

In Arizona, the opposing party has 20 days–in a Superior Court case or 30 days in the Justice Court–to produce the documents requested and their written responses.

Lastly, similar to 26.1 initial discovery statements. These packets are not exchanged with the Court. In fact, the Judge will never see this information unless a specific piece of information is formally introduced as evidence at trial. So don’t worry about impressing the judge, we are simply trying to gain useful information.

If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at 480-389-6529 or send us a message HERE.

Motion for Summary Judgment

What is a Motion for Summary Judgment?

A Motion for Summary Judgment is a pleading filed with an Arizona court where the moving party is asking the judge to rule on an issue—or the whole case—without the need for a trial. In order for a summary judgment to be granted by the court, the party filing the motion for summary judgment must demonstrate that there are “no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law.” This means that the undisputed facts presented in a particular case entitle one side to win because of the existing law relating to that issue.

When considering a Motion for Summary Judgment, the Arizona judges must view all “the evidence and all reasonable inferences in the light most favorable to the non-moving party.” Rowland v. Kellogg Brown and Root Inc. Per Arizona Rules of Civil Procedure 56(c), Only if the Arizona court makes a finding that no genuine issue of material fact exists can the moving party be granted a judgment as a matter of law. If issues of material fact exist then the Motion for Summary Judgment should be dismissed in its entirety.

Arizona courts are cautioned not to use summary judgment proceedings as a substitute for trials, the motion should be granted if the facts produced in support of the claim or defense have so little probative value, given the quantum of evidence required, that reasonable people could not agree with the conclusion advanced by the proponent of the claim or defense.

The burden of persuasion on the party seeking summary judgment is heavy and if there is any genuine issue as to a material factual issue is present, the motion should be denied.

So a summary judgment is provides an award to one party without a full trial. Additionally, the award can be for the full case or just a specific issue in dispute.

Statement of Facts and Affidavit

There are two documents filed in conjunction with the summary judgment itself; a statement of facts and affidavit of facts.

  • Statement of Facts– The statement of facts lays out the facts as moving party sees them. In addition, to just stating the “facts”, they must also cite to specific documents that supports their statements.
  • Affidavit in Support– Additionally, the moving party must file an affidavit where they swear under oath that each of the statements they make are true.

Why Did They File a Motion for Summary Judgment?

Just because the opposing party filed a Motion for Summary Judgment it doesn’t mean that you did something wrong or they have an extraordinarily strong case where the judge will enter judgment in their favor without even going to trial.

It is quite common for Motions for Summary Judgment to be filed in Arizona cases. In part they are filed because a judge can rule on just one aspect of the case. This will allow them to see if they can “chip at the edges” of our lawsuit and see if they can get anything dismissed at this time.

What Should you Do?

You must file a response to the Motion for Summary Judgment and explain to the Arizona judge why the case should move forward to trial. As part of the response a statement of facts and affidavit must also be filed. Similar to the opposing party’s statement of facts you must cite a source for every statement you make to the court. Doing this can be incredibly tedious and time consuming. The response and accompanying documents must be filed within 30 days of receiving their Motion!

What If the Motion for Summary Judgment is Granted?

If the motion is granted, the judgment on the issue or case is deemed to be a final judgment from which a party may appeal. An Arizona court of appeal can reverse the summary judgment and reinstate the claim in the Superior Court. However, this is rarely done and most summary judgments are upheld on appeal.

If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at or 480-389-6529 by sending us a message HERE.

Motion In Limine

What is a Motion in Limine?

A motion in limine is a pleading filed with the court where on party is asking the judge to prevent certain pieces of evidence from being used during a trial.

What is the Definition of Motion in limine?

The phrase, in limine is a Latin phrase that means “at the threshold”. Hence if granted a Motion in limine will stop certain evidence “at the threshold” or prevented from even being let “in the door”.

At What Point is a Motion in limine Filed?

In Arizona these Motions must typically be filed by a certain date established at an earlier time by the court. For instance, the judge may say, “all Motions in limine” must be filed by this certain date or you may not raise the argument at a later date.

What are the Factors Determined by the Judge?

Historically three elements must be met before a judge will grant the Motion in limine.

  1. When the evidence is not relevant to any of the issues at dispute in the current case.
  2. When evidence is extremely prejudicial to one party without helping the jury decide on the case in front of them.
  3. When admitting the evidence would violate a state or federal law or the rules of evidence. 

If you need help from an Arizona real estate attorney then contact the Dunaway Law Group at 480-389-6529 or send us a message HERE.