“An easement is the right to use real property owned by another person for a specific and limited use.”
how are easements created?
Easements are created by several methods but they fall into two categories; “express” by an act or by “prescriptive” use of the easement.
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 it to exist. This is why prescriptive easements are also known as “implied easements”. They are implied easements 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.
Arizona law (A.R.S. § 33-2401) recognizes easements that may be requested by a landlocked owner who is surrounded by land owned by the state (of Arizona) or any political subdivision of the state, and states that “Notwithstanding any other law, reasonable access to private property shall not be denied by this state or any political subdivision of this state.”
Arizona law (A.R.S. § 12-1202) also recognizes a private landlocked landowner’s right to seek an easement from a neighboring landowner upon a showing of “reasonable necessity.”
types of easements
Right-of-Way Easement. A right-of-way easement is a legal right that allows someone to travel through or use a specific portion of another person’s property. It provides access across someone’s land for a particular purpose, such as reaching a public road, accessing a neighboring property, or accessing utilities or services. The dominant estate (the property benefiting from the easement) has the right to pass over the servient estate (the property subject to the easement) without interference. Right-of-way easements are typically established through a written agreement, deed, or court order.
Key Features of a Right of Way Easement–
a. It grants the right to pass over or use a specific part of the property.
b. It is often used for access purposes, such as roads, driveways, or pathways.
c. It may be exclusive (only the holder of the easement can use it) or non-exclusive (multiple parties can benefit from the easement).
d. The easement holder usually has the duty to maintain and repair the portion of the property subject to the easement.
e. The right of way may be limited to specific hours or purposes, depending on the agreement.
Ingress-Egress Easement. An ingress/egress easement, also known as an access easement, is a type of easement that specifically grants the right to enter or exit a property through another person’s land. It allows a property owner or occupant to access their property by passing over a neighboring property. Ingress refers to the right to enter the property, while egress refers to the right to exit the property.
Key Features of an Ingress-Egress Easement–
a. It grants the right to enter and exit a property.
b. It is often used when there is no direct access to a public road or when an alternative access route is more convenient.
c. The easement holder typically has the right to use the access route but may not have the right to use the rest of the servient estate.
d. The easement may specify the type of vehicles or equipment that can use the access route.
e. Maintenance and repair responsibilities may vary depending on the agreement.
Both the right-of-way easements and ingress-egress easements grant certain rights to individuals or entities regarding the use of someone else’s property. While there may be some overlap in their application, the easements types serve different purposes and have distinct characteristics. In comparison, a right-of-way easement provides a broader right to pass through or use a specific part of someone’s property, while an ingress-egress easement specifically grants the right to enter and exit a property through a neighboring property.
terminating an easement
Easements Can Be Terminated or Abandoned in 5 Basic Methods.
1. Termination by Expiration: Easements can be terminated by the expiration of an agreed upon time event. For example, there could have been an agreement that an easement will last 10 years at which time it will automatically terminate.
2. Termination by Agreement: This happens when the property owner expressly conveys an 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.
3. Abandonment of an Easement: 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 proper county recorder.
4. Termination by Decision: 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.
5. Termination by Merger of the Dominant and Servient Properties: Easements can be terminated by a merger of the dominant and servient properties. 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.
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.
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 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 in Arizona 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 can be very confusing, if you have questions 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 states of Arizona and New York.