Nearly all properties in Arizona have some type of easement on their property. Whether it’s related to access or utilities, easements are a normal part of owning property and typically do not create issues.
However, the nature of one person using another person’s property has the potential to create conflict. These issues can range from simple confusion on the terms or purpose of the easement to blatant abuse of the contracted use. If the issue cannot be resolved with a discussion or negotiation, then it can be necessary to seek relief with litigation.
Here are three things to know before easement litigation in Arizona.
One: What are the types of easements in Arizona?
Easements are a legal right for a person, entity or property to use a property owned by someone else for a specific and limited purpose. Our team put together a detailed article on what you need to know about easement rights in Arizona that provides a great explanation of the types of easements and rights associated with them in Arizona.
Here is an overview of the most common recognized easements in Arizona:
- Right-of-Way Easements – Established for individuals or entities to travel across a property for a specific purpose.
- Support Easements – Established to protect the foundation and structure of a property and set limits on neighboring construction activities that might impact the property.
- Light and Air Easements – Established to protect views and sunlight exposure for a dominant property and limit construction height for the subservient property.
- Artificial Waterway Easements – Established to make sure there is reasonable access to artificial waterways running through a property.
- Aviation Easements – Established to allow for the use of airspace above a property.
Two: What are the common types of easement litigation in Arizona?
Each type of easement has its own potential for legal issues or potential easement litigation. The common types of easement litigation vary by the legal structure used to create the easement.
- Express easements are created with a deed, contract or written legal agreement. These are typically the least likely to require litigation as the terms have been recorded. If a situation arises where one party is not following the terms of the agreement, there is certainly potential for litigation to be required to resolve the matter.
- Utility easements are recorded by utility companies. Utility companies are granted the right to easements on nearly all properties. This makes it the most difficult to successfully pursue any litigation. Any potential legal issue with utility easements should be reviewed with an experienced real estate attorney as soon as possible. These matters should not be taken lightly.
- Prescriptive easements are granted for open and continuous use for more than 10 years without an express written contract. This type of easement and legal matters related to use of a property without a contract or deed have obvious potential for easement litigation. Whether you have been using a property or have someone using your property, it is in your best interest to pursue getting the arrangement formalized in a contract to avoid future issues. Sometimes, a landowner may be better off providing a license to a person who they have permitted to access their property. Prescriptive easements often lead to litigation when it devolves into an argument about what was agreed upon between the parties.
- Easements by necessity are established when a property owner has a right to enter and exit their property. This is common if you buy a plot of land within the property of someone else. Private property owners have an expectation of reasonable access and enjoyment so an easement by necessity will need to be established with the purchase of the property. While that should be addressed in a written contract or the property deed, there is potential for easement litigation if the matter is left informal.
Three: What Documents, Information and Evidence are Needed in Easement Litigation?
In most cases, the most important document for easement litigation is the contract that defines the specific and limited use of the property. Whether you have granted someone else the right to use your property or you have the right to use another property, the contract is the best place to start and the most important determining factor for the approach to any potential easement litigation.
Since prescriptive easements will typically not have a contract or written agreement associated with the open and continuous use, collecting any evidence on when the use started and any details on how often it was used is the most important place to start. This can be difficult if you did not know your property was being used during that time or that you needed to collect the evidence when you were told you could use someone else’s property.
Litigation involving a prescriptive easement can become contentious and confrontations between the parties about property usage can quickly become counterproductive. If you find yourself in a situation that might lead to litigation around property usage, it is important to work with an experienced real estate attorney that can assist with documenting any evidence and moving towards a legal agreement where possible.
Arizona Attorney for Easement Litigation
Every property owner has the right to access and reasonable enjoyment of their private property. This can involve necessary access to through a neighboring property or certain restrictions on future developments or usage of neighboring properties.
These issues can be difficult to resolve with a neighboring property owner that does not show reasonable flexibility. Easement abuses happen as well, and it can be necessary to utilize the courts to document and settle any disputes.
M&G Law is the leading real estate law firm in Arizona and our attorneys can guide property owners through any easement litigation. Our firm works with clients to settle any property disputes without litigation whenever possible, but we are prepared to represent your interests in court when needed. Contact us today at 602-562-7218 to schedule an initial consultation for easement issues or make an appointment online here.