How Are Easements Created?
In Arizona, easements can be created in one of two primary ways: Expressly (by written agreement) or by Prescription (through long-term use).
1. Express Easement
An express easement is an easement intentionally created by a written instrument, such as a deed, recorded easement agreement, declaration, plat, reservation, or grant, that expressly gives one person or parcel the right to use another person’s land for a specific purpose.
2. Prescriptive Easement
A prescriptive easement is a right to use another person’s land that is acquired through long-term use, even though there was no written easement agreement. The basic Arizona rule is that the person claiming the prescriptive easement must show:
1. The land was actually and visibly used;
2. The use continued for at least ten years;
3. The use began and continued under a claim of right; and
4. The use was hostile to the true owner’s property rights.
“Hostile” does not necessarily mean angry, confrontational, or malicious. It means the use was inconsistent with the owner’s rights and was not merely by permission. For example, regularly using a road across a neighbor’s land as though you had the right to do so may be “hostile” in the legal sense if the use was not permissive. Arizona courts also recognize an important presumption: once the claimant shows the use was open, visible, continuous, and unmolested for the required period, the use is presumed to be under a claim of right and not permissive.
The burden can then shift to the landowner to show that the use was actually permitted. A prescriptive easement is different from adverse possession. Adverse possession can result in ownership of land. A prescriptive easement usually results only in a right to use land for a particular purpose, such as access, a driveway, a road, utilities, or sometimes access to a shared well. The claimant does not gain title to the property itself.
Easements for Landlocked Properties in Arizona
Arizona law also provides relief for landlocked property owners who have no legal access to their land.
- A.R.S. § 33-2401 ensures that property owners surrounded by land owned by the State of Arizona or any political subdivision cannot be denied reasonable access. The statute provides that “reasonable access to private property shall not be denied by this state or any political subdivision of this state.”
- A.R.S. § 12-1202 recognizes a private landowner’s right to obtain an easement across neighboring property when there is a showing of reasonable necessity. This allows a landlocked owner to petition the court for an access easement to reach a public road or other essential area.
How Are Easements Terminated?
1. Termination of an Easement by Merger of the Dominant and Servient Properties
Easements are automatically terminated by a merger of the dominant and servient properties or if the dominant and servient properties come under the same ownership. Once the properties are owned by one person, there’s no longer a need for one parcel to have a right of use over the other. The easement will have been said to merge with the other rights held by the owner.
2. Termination of Easement by Written Agreement
An easement can be terminated by a written release or agreement signed by the dominant estate’s owner and recorded with the county recorder’s office. This method is often used when both property owners agree that the easement is no longer needed.
3. Termination of Easement by Abandonment
If the owner of the dominant estate stops using the easement and demonstrates a clear intent to abandon it, the easement may be considered terminated. Mere non-use is not enough—there must be evidence showing the owner intended to give up the right permanently. Easements can be terminated when the owner abandons her right to it. Usually, mere nonuse of an easement is not enough to qualify for termination. The owner must make a clear, unequivocal, decisive act to abandon the easement. For this reason, a Notice of Abandonment of Easement should be prepared and recorded with the county recorder.
4. Termination of an Easement by Expiration of Time or Purpose
Some easements are created for a limited duration or for a specific purpose—such as during construction or for access to a temporary site. When the stated time period expires or the purpose no longer exists, the easement terminates automatically.
5. Destruction of the Servient Estate
In rare cases, an easement terminates if the physical land or structure supporting the easement (for example, a private road or bridge) is permanently destroyed and cannot be reasonably restored, the easement may
Frequently, adjacent properties have an easement between them, allowing one or both parties access to the other. One is the servient property, and the property that benefits from the easement is the dominant property. In this case, you have an appurtenant easement. If one owner acquired both properties and combined them into one legal description, the easement would no longer be necessary. The two properties have merged. 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 not necessary to have permission to cross your own property.
Termination of Prescriptive Easements
Court Intervention to Terminate Prescriptive Easements.
A prescriptive easement is different from an express easement because it is not created by a written agreement. Instead, it may arise when someone uses another person’s property openly, visibly, continuously, and under a claim of right for the required period of time. In Arizona, the required period is generally ten years, and Arizona courts have described the required showing as actual and visible use for ten years, beginning and continuing under a claim of right, and hostile to the true owner’s title. Spaulding v. Pouliot and Paxson v. Glovitz are commonly cited Arizona cases for these elements.
Because a prescriptive easement is based on use rather than a written document, disputes often arise when the servient owner denies that the dominant owner has any legal right to continue using the property. For example, the servient owner may believe the neighbor’s use was merely permissive, occasional, abandoned, too limited to create an easement, or never continued for the required ten-year period.
In that situation, either party may ask the court to determine the parties’ rights. The claimed dominant owner may file an action asking the court to declare that a prescriptive easement exists and to prevent the servient owner from blocking access. The servient owner, on the other hand, may ask the court to declare that no prescriptive easement exists, that the claimed use was permissive, that the required elements were not satisfied, or that any previously acquired prescriptive easement has been abandoned or extinguished.
Scope of the Prescriptive Easement
A court may also determine the scope of the prescriptive easement. This is especially important because a prescriptive easement is generally limited by the nature and extent of the historical use that created it. If the historical use was a narrow dirt road for occasional residential access, the court may not allow the easement to be expanded into a broader commercial access route. Arizona cases recognize that courts may limit the scope of a prescriptive easement to the use actually established by the evidence.
A servient owner should not engage in self-help by blocking a claimed prescriptive easement without first obtaining a court ruling. If a prescriptive easement has already been acquired, blocking the easement may expose the servient owner to claims for declaratory relief, injunctive relief, damages, and possibly attorney’s fees depending on the circumstances.
Conclusion
Easement rights and property access issues can be confusing, and misunderstandings often lead to lengthy and costly disputes. The Dunaway Law Group helps Arizona property owners understand, create, and resolve easement issues efficiently and effectively. Call us at 480-702-1608 or send us a message HERE to schedule a consultation.
* 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 states of Arizona and New York.