What Buyers Should Know About Easements

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What Buyers Should Know About Easements
Real Estate

“Easement” is a legal term that means one person has the right to use another person’s property for some limited purpose. This limited use is considered a form of real estate interest that the property owner cannot simply revoke at will.

In Arizona, easements typically fall into one of these categories:

  • Right-of-way easements that allow others to travel across your property for a specific purpose.
  • Easements of support that forbid others from doing anything that adversely affects the foundation of the property’s structures.
  • Easements of “light and air” that prevent adjacent property owners from building too high and thereby obstructing the view from your property.
  • Easements pertaining to artificial waterways that give adjacent property owners access to artificial waterways (such as canals) on your property.

Whether they know it or not, most property owners in Arizona have easements against their property. For example, utility companies will typically have easements that grant access to the properties they service. Another common form of easement is for ingress and egress. An easement is commonly used to grant access across one neighboring property to the next or for public roadways. An easement can also provide others the right to physically access property for a walking path, servicing a common well, or other reasons.

How Easements are Created

Under Arizona law, there are several ways that an easement can be created. The two most common ways are (1) an express easement that is created by a written agreement (deed, contract, etc.), and (2) a prescriptive easement that is created by continuous use for a period of at least 10 years.

In addition, there is an implied easement, which is one that is determined to already exist by a court that is overseeing a property dispute. The court will base the easement’s existence on the facts and circumstances of a property transfer, from which the court may determine that the parties intended an easement to exist even if the parties did not write the easement into the deed or contract or record it in any other way. Often these occur when a landowner has subdivided a parcel of property and sold the smaller pieces without expressly defining how each property should be accessed.

Termination of an Easement

Buyers who decide they wish to terminate an easement have a number of methods to achieve this, including:

  • Expiration—This is the easiest termination of an easement because it happens automatically when the time period initially allotted for the easement’s term expires.
  • The Merger Doctrine—This doctrine decrees that the easement terminates when the same party owns the dominant and subordinate properties.
  • Abandonment—This occurs when an easement holder takes physical action with clear intent to abandon the easement permanently.
  • Release—This is when the holder of the easement furnishes the landowner with an official deed of release from the easement, which is filed with the county clerk.

There are other forms of easement and other ways to terminate them. If you are burdened by or entitled to an easement that is either set for termination or that needs enforcing in Arizona, you’ll need an experienced real estate attorney to help you.

Our real estate attorneys represent parties on either side of real estate and financing transactions, including buyers, sellers, landlords, tenants, lenders, borrowers, trustees, guarantors, shareholders, partners, and others. We advise, structure, negotiate, and document a variety of real estate and financing transactions, including leases, purchase and sale agreements, financing agreements, and development agreements for a variety of commercial and residential projects. Contact us today and learn how we can help.

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