There is a common misconception that owning property means you have complete and unfettered control over the use of it. Easements and other encumbrances can place a variety of limitations on the use and transfer of your property.
If you’re a property owner, you want to understand easements and other encumbrances, so you know the risks of litigation associated with them. We’ve put together a few things to understand about Arizona litigation on easements and other encumbrances to help you gain a better understanding of how this process works.
What are Easements and Other Encumbrances?
An encumbrance is any claim on a property that restricts full ownership rights. Easements are the most common encumbrance on property in Arizona. Easements are defined as the legal right to use property owned by someone else for a specific and limited purpose. Most real estate in Arizona has some easements for common things like utilities or ingress and egress. Utility easements grant utility companies the right to run power, cable/internet, water and gas lines through your property. These companies are also authorized by the easement to access the property for repairs and maintenance of these utility lines.
Ingress and egress easements are commonly granted for public roads and for access to a property via a neighboring property. Once an easement is granted, that easement will usually be transferred to subsequent owners if the properties are sold.
Types of Easements and Encumbrances in Arizona
We shared the various easement types in a previous article on easement rights in Arizona. Express easements are common, and they are simply defined as an easement granted by contract, deed or agreement. Getting a clear and written agreement for an easement is the fastest way to get an easement approved. It is important to have an experienced Arizona real estate attorney draft the contract or review your potential agreement before executing an express easement to avoid any potential setbacks or delays.
As mentioned, utility easements are the most common. These easements have been granted to utility companies for the greater good of the state so that utility services can be provided to all necessary residents. These were typically granted to the service provider when they installed their required lines or pipes during development of the neighborhood. The utility provider will need to get the property owner’s approval if the utility company wants to exceed the scope of the easement.
Prescriptive easements are granted when one party can show regular usage of a property for more than ten years without the permission of the owner. If you are concerned about continued use of your property or looking to define an easement that has been in use for more than ten years, you will definitely want to review the case with an experienced real estate attorney in your area.
Litigation on Easements in Arizona
When one property owner is forced to provide access or usage rights to another individual or company or government entity, there are many contentious issues that can arise and result in litigation on easements in Arizona.
If a party in Arizona is looking to establish an easement by prescription to a property, they will have to file a lawsuit to show there is clear and convincing evidence the land in dispute is being used routinely and visibly for a period of more than 10 years. It must also be proven that the use was under claim of right and the lack of an easement would be hostile to their existing property. In Arizona easement law, hostile simply means that the use was without the owner’s permission.
Since an easement on a property maintains the current title holder’s right to the property while ensuring other parties rights to limited and specific use of the property, there are also legal issues that can arise about whether the party granted the easement is using the property beyond the specific and permitted use.
When property owners resort to litigation, the disputes often involve the rights and obligations of the affected estates, including the existence, location, and scope of a claimed easement. Before purchasing a property, buyers should review title reports for any written and recorded easements as well as survey the physical property. Please also beware, recording a false easement or false lien can subject one to penalties under A.R.S. 33-420.
Experienced Attorney for Arizona Litigation on Easements
The attorneys at M&G Law can assist clients with all types of legal issues that can arise related to easements and litigation for any other encumbrances on a property in Arizona. We can help defend against unwarranted claims for an easement or encumbrance on your property. We also routinely assist clients with pursuing legal and justified easements on neighboring properties.
Easements and other encumbrances can be complicated and there is potential for these issues to become contentious when they involve neighbors. Contact us today at 602-533-2840 to schedule an initial consultation or make an appointment online.