Arizona law recognizes several different types of easements, which is a term generally used to address the right to use someone else's real property for some limited purpose. Many easements fall into one of four broad categories that have historically been enforced at common law, include (1) right-of-way easements; (2) easements of support; (3) easements of "light and air"; and (4) easements pertaining to artificial waterways. Today, there are many more specific varieties of easements and in Arizona it would be rare to own a property completely free of easements.
Some of the easements commonly encumbering Arizona real estate include easements granting utilities limited access for certain purposes, easements prohibiting the construction of certain structions, and easements allowing access across someone else's property. Such right-of-way easements are perhaps the most common types of easemsent and they may be expressed in recorded documents or created by the operation of law.
Express Easements
Most easements are created by the agreement of landowners by written agreement in written documents. In these documents the servient estate will grant an easement to another, the dominant estate, in a legally binding document that is then recorded to put others on notice of the existence of the easement. For example, a property owner splitting his or her lot and selling one of the lots to someone else may require an easement over the lot being sold to allow for access to the lot being retained.
Prescriptive Easements
Prescriptive easements are not expressed in written documents, but are implied easements that are created after a dominant estate has used the servient estate's property in a hostile, continuous and open manner for a statutorily required number of years. In Arizona, the continuous use must contine for 10 years. The standards governing prescriptive easements are similar to those for adverse possession, but unlike acquiring title via adverse possession, a prescriptive easement does not require exclusivity.
A prescriptive easement affords the same rights as a written easement, but unless the dominant estate seeks to enforce his or her rights by obtaining some recorded recognition of the easement third parties may not be aware of the easement's existence.
The sale legal theory of prescription may also be used to end an existing legal easement, whether expressed, prescriptive, or allowed under some other theory.
Easements By Necessity
Easements by necessity arise when access over adjacent land is absolutely necessary to reach a landlocked parcel from a public way. The party seeking the easement may also have to show that there was some original intent for the easement to exist and/or that the need for the easement outweighs the burden on the servient estate.
Other Types Of Easements
There are many other types of easements that have been addressed by Arizona Courts, inlcuding implied easements, easements by prior use, easements by estoppel, etc. To determine what easements may affect you and/or your property, you may wish to consult with an Arizona real estate lawyer.
Easement Disputes In Arizona
Many easement disputes in Arizona involve litigation to determine the rights and obligations of the affected estates, inluding the existence, location, and scope of a claimed easement. Litigating such disputes can be costly and time-consuming, and easement disputes can often be avoided by ensuring that easements are accurately described and property rights are monitored and protected. Before purchasing a property buyers should carefully review title reports, which will explain any written and recorded easements, and should also physically inspect the real estate and consider what easements might exist that are not in the recorded documents.