What is an Easement?

“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 the two most common ways in which easements are created are by an “express” act or through use of the land.

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. 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.

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.”

different types of easements

  • Right-of-Way. 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”. This prevents a neighboring property 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.

terminating an easement

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

  1. Termination by Expiration: 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. Termination by Agreement: This 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 it. 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.

4. Abandonment 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. Merger of Easement and Land: 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. 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 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 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 real estate law can be very confusing, in particular easements on shared water wells. If you have questions about your real estate 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.

Author: Clint Dunaway

Arizona attorney.