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 created through a deed, contract, or other written document signed by the property owner. This is the most straightforward and cost-effective method of establishing legal access to property. Because express easements are documented in writing, they can be easily recorded with the county recorder’s office, reducing the risk of future disputes.
2. Prescriptive Easement
A prescriptive easement—often referred to as an implied easement—arises when one property owner (the dominant estate) has openly, continuously, and without interruption used another person’s property (the servient estate) for a period of at least ten years. Unlike express easements, there is no written agreement or formal grant. Instead, the law recognizes the easement based on the parties’ long-term conduct, which demonstrates an implied intent to allow access.
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 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 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 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 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.
Conclusion
Easement rights and property access issues can be confusing, and misunderstandings often lead to 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.