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Purchasers of residential or commercial land are sometimes disappointed when they learn that they cannot use the land they purchased as they had originally desired.  A major source of legal restrictions on the use of private property is found in Arizona’s zoning and land use laws.  Another issue that occurs is when landowners, without realizing it, are not the only persons who have a legal right to use their land.

In fact, less than one-half of Arizona land is privately held, so it is common that landowners may be landlocked and need an easement from state land.  It is also possible that a private landowner will be landlocked and need an easement from a neighboring landowner.

These are common Arizona easement rights and how to navigate them as a landowner.

What is an Easement?

An easement is a legal right to use property owned by someone else for a specific, limited purpose.

Easements are typically identified in the title or recorded deed of the property but still may be unclear.

Once created, most easements are appurtenant, benefiting a dominant estate, and are incident to ownership of the dominant estate, or tied to that ownership. There are also easements in gross, which benefit a set person and not a piece of land.

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 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.”

Most of the time, parties voluntarily will enter into an easement agreement.

How Easements are Created

Easements in Arizona are created for a variety of reasons, and the details of each easement depend on the circumstances and negotiations of the parties involved. Landowners can have these easements recognized explicitly or implicitly, according to the way the easement was created.

Express Easements

An express easement is created by deed, contract or other written legal agreement. An express easement is the fastest and most cost-effective way to establish access to a property.

Utility Easements

Utility companies will normally have written and recorded easements granting access to properties that they service. The property owner must revisit the easement if the utility company wishes to build a structure on land included in the easement that could interfere with the established agreement.

Prescriptive Easements

Prescriptive easements are defined as implied easements that 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. This means that a party has openly and publicly used land for a full decade without the owner’s consent and obtains rights to that portion of the owned property.

Easements by Necessity

When landlocked property is sold, the purchaser has by necessity a right to travel over the seller’s land in order to enter or exit the property. This is just one incident for which an easement by necessity is created, but it best illustrates the scenarios that can result in this type of easement.

Easement Rights in Arizona

Arizona law recognizes many types of easements that are dependent upon circumstantial factors, but these are some of the most common.

  • Right-of-Way Easements let people travel across a property for a specific purpose.
  • Easements of Support prohibit other parties from digging too deep and affecting the foundation of the property’s structures.
  • Easements of “Light and Air” prevent adjacent property owners from building too high and affecting the view from the dominant estate’s structure(s).
  • Easements Pertaining to Artificial Waterways give reasonable access to artificial waterways that run through a property.
  • Aviation Easements allow the use of airspace above a property.

Easement Disputes in Arizona

Easement disputes in Arizona arise because the content, scope and location of alleged easements are not always clear. This is the main reason prospective landowners are encouraged to review the title reports and real estate of a property to determine if there are any easements that are recorded or implied before completing a real estate purchase.

Find an Experienced Phoenix Real Estate Attorney

The attorneys at MacQueen & Gottlieb have significant experience with real estate law in Arizona. Our attorneys can assist you with any easement issues and help you understand your rights. If you were involved in a real estate transaction where one party withheld easements, our attorneys can assist you in pursuing that case. Contact us today at (602) 726-2229 to schedule an initial consultation or make an appointment online.

 

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