Arizona Easement Law
Easement law deals with the right of one party to legally utilize or a portion of another's real property for some limited purpose. Easements typically fall into one of four categories that courts in Arizona and other states have recognized as creating enforceable easement rights: These include the following: (1) right-of-way easements; (2) easements of support; (3) easements of "light and air"; and (4) easements pertaining to artificial waterways. There are actually many more specific varieties of easements and almost every property owner in Arizona has easements against their property. In fact, it would be extremely rare to own property in Arizona completely free of easements.
Some of the common easements encumbering real estate in Arizona are easements granting utilities access for certain purposes, easements prohibiting the construction of certain structions, and easements allowing access across someone else's property. Right-of-way easements are among the most common types of easemsent and they may be written in recorded documents or created by the operation of law.
Expressed or Written Easements
Many easements are created by agreement of the landowners by agreement in written documents. These easements are usually not the subject of disputes between the parties. The documents memorializing express easements the servient estate will grant an easement to another property, the dominant estate. The legally binding document is then recorded to put others, including subsequent purchasers of either property, on notice of the existence of the easement. One common example of this type of easement involves a property owner splitting his or her lot and selling one of the lots to someone else, but requiring an easement over the lot being sold to allow for access to the lot being retained.
Prescriptive easements are not documented in written form, but are implied easements that are created by the operation of law based on facts supporting the creation of the easement. For example, after a dominant estate has used the servient estate's property in a hostile, continuous and open manner for a statutorily required number of years, a prescriptive easement may arise. In Arizona, the continuous use must contine for 10 years. The rules governing prescriptive easements are similar to those for adverse possession, but unlike acquiring title via adverse possession, a prescriptive easement does not require exclusivity.
A prescriptive easement gives the dominant estate the same legal rights as a written easement, but unless the dominant estate seeks to enforce his or her rights in the easement by obtaining some recorded recognition, third parties may not be aware of the easement's existence.
The same legal theory of prescription may also be used to end an existing legal easement, whether expressed, prescriptive, or allowed under some other theory.
Easements By Necessity
Easements by necessity arise when access over adjacent land is required to reach a landlocked parcel from a public right of way. The party seeking the easement may also have to demonstrate that there was some original intent for the easement to exist and/or that the need for the easement outweighs the burden on the servient estate.
Other Types Of Easements
There are many other types of easements that have been recognized by Arizona Courts, inlcuding implied easements, easements by prior use, easements by estoppel, etc. To determine what easements may affect you and/or your property, you may wish to consult with an Arizona real estate lawyer.
Easement Disputes In Arizona
Many easement disputes in Arizona involve litigation to determine the rights and obligations of the affected estates, inluding the existence, location, and scope of a claimed easement. Litigating such disputes can be costly and time-consuming, and easement disputes can often be avoided by ensuring that easements are accurately described and property rights are monitored and protected. Before purchasing a property buyers should carefully review title reports, which will explain any written and recorded easements, and should also physically inspect the real estate and consider what easements might exist that are not in the recorded documents.