An easement is a legal right to use the property of another for a specific purpose. Easements may be identified on a subdivision plat, survey, or in the legal description of a recorded deed.
Easements in Arizona
Easements are typically divided into two classifications – easements appurtenant and easements in gross.
- An easement appurtenant is one that benefits the adjoining land regardless of who owns that land. An easement appurtenant attaches to and runs with the land. This means that when title to the property is transferred to another, the easement is not extinguished. To establish an easement appurtenant, there must be a dominant tenement and a servient tenement. The land which benefits from the easement is known as the dominant tenement. The land that is burdened by the easement is known as the servient tenement.
- An easement in gross is one that benefits a specific individual or entity. An easement in gross typically expires upon the death of the owner of the dominant tenement. Moreover, during his lifetime, the owner of the dominant tenement may not sell, assign, or otherwise transfer his interest in the easement. However, an easement in gross granted to a business entity usually may be sold, assigned, or inherited.
Types of Easements
Easements are granted for a variety of reasons depending on the needs and circumstances of the parties. The most common types of easements are easements for ingress and egress, driveway easements, and utility easements. Other types of easements include:
- Irrigation Easements;
- Landscape Easements;
- Conservation Easements;
- Drainage Easements;
- Cross Access Easements; and
- Right-of-way Easements.
How Easements Are Created
Arizona law recognizes several methods of creating easements. The two most common ways in which easements are created are by express act and by implication.
- An express easement is created by deed, contract, or other written agreement.
- An implied easement may be found where the circumstances and facts surrounding a transfer or conveyance of real property indicate that the parties intended such a result.
Easements may also be created by necessity and by prescription.
- An easement by necessity typically arises in transactions involving the sale of landlocked property. Because Arizona law recognizes that every landowner is entitled to a right of ingress and egress to his property, where landlocked property is sold, the grantee has by necessity a right to cross over the land of the grantor in order to enter or exit his property.
- In order to establish an easement by prescription, a person must file a lawsuit and prove to the court that his use of the property was open, notorious and hostile to the owner and that his use of the property in such a manner continued for a period of at least ten years. If a prescriptive easement is not used for five years, the owner of the land which is burdened by the easement may petition the court to have the easement extinguished.
Easement and Property Boundary Disputes
Easement problems arise for a number of reasons. One of the most common easement issues is misuse. Because an easement may be granted for a very limited and specific purpose, if the grantee misuses it, the grantor may have a claim against him. Conversely, if the grantor interferes with the grantee's use of the easement, the grantee may have a legal claim against the grantor.
Help from a Real Estate Attorney in Arizona
Anyone facing an easement issue should hire an experienced real estate attorney. A qualified real estate attorney will run a title search and order a survey in order to ascertain the boundary lines of the property and the location of any easements. After reviewing the title search, survey, and any other relevant documents, he will offer you his legal opinion and recommend a course of action.