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
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:
Access Easements; and
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
- 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.