Does an Easement Stay with the Property, Even if There is a New Property Owner?

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  2. Does an Easement Stay with the Property, Even if There is a New Property Owner?
Does an Easement Stay with the Property, Even if There is a New Property Owner

Many parcels of real estate involve an easement or the legal right of someone other than the owner to use or access a portion of the real estate for some limited purpose. Whether you plan to buy or sell real estate, understanding the impact of an easement on your real estate transactions is critical. Whatever the case may be, an Arizona real estate attorney can advise you of your legal rights concerning any easement  attached to real estate and how changes in ownership might affect those rights.

Understanding Easements

You might want to purchase real estate that is subject to an easement, or perhaps you plan to sell property that has an easement on it. Easements might exist for various reasons. For instance, a utility company might have an easement on a landowner’s property to run underground gas lines. Likewise, a neighboring property owner might have an easement in the form of a driveway that allows him to access his property. These are the most common types of easements, which are often referred to as “right-of-way” easements.

The Impact of Changes in Property Ownership on Easements

Although some exceptions always exist, easements generally remain with the property, even if ownership changes over time. As a result, if a previous property owner agreed to an easement, then subsequent property owners likely must abide by the easement, as well. While it is possible to remove easements under some circumstances, property owners cannot decide to cancel or no longer honor an easement when they purchase property subject to an easement.

Since the easement generally remains with the property, the seller of the property must disclose any easements on the property to the buyer. This requirement exists both because the easement potentially lowers the property’s value and because the easement is a legal requirement that the new property owner must also follow.

Defining the Scope of an Easement

Legal disputes about easements often arise when the owner of the property subject to the easement and the person benefiting from the easement cannot agree upon the scope of the easement. For example, this disagreement might concern the easement’s width, length, extent, or location.

If an easement grant specifically sets out the dimensions of the easement, then there should be disagreement about its scope. However, Arizona law does not require that an easement have a legal description or be based on a surveyor’s report. Therefore, an easement is not void under Arizona law simply due to an insufficient or imprecise description.

When the parties cannot agree as to the scope of the easement, one party or the other may file a declaratory judgment action in court. This type of suit asks the court to define the parties’ respective rights as to the property, including the easement.

Maintenance of Easements

If there is a specific easement grant, it may contain language stating which party is responsible for the costs of maintaining the easement. In the absence of such language, though, easement owners share the obligation to maintain the easement. However, shared easement expenses would not include unnecessary upgrades to the easement; in that case, the easement owner who wishes to make the upgrades would be solely responsible for those expenses.

Avoiding Easement Litigation

Litigation over easements can be complex, lengthy, and expensive, so explicitly defining easements at the outset of their creation can avoid these types of disputes. Before engaging in any real estate transaction, buyers should carefully review the title report for the property, which will explain the existence of any easements on the land. However, buyers also should physically inspect the land to determine if the recorded easements are consistent with the title report and if any other unrecorded easements might exist.

Call Us Today for Help with Your Easement or Other Real Estate Matter

The real estate lawyers of Provident Law have over 250 years of combined legal experience, skills, and knowledge to benefit our clients. We aim to build a relationship with you as we work together to solve your most complex legal problems. Contact us today by calling (480) 388-3343 or reach out to us online to see what we can do for you.

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Understanding Easements