- Confirm Your Easement Access
- September 29, 2009 | Authors: Valerie L. Marciano; Adam S. Kunz
- Law Firm: Jaburg Wilk, P.C. - Phoenix Office
Have you purchased or handled a sale of rural land with a winding, dusty private driveway that crossed neighboring property once or twice before reaching the public road? Did you compare that driveway with the property deed, to see if the deed included an “easement” for the driveway? Did the legal description of the easement actually match the driveway’s layout? When you are buying unimproved land, it is essential that you establish that the property has legal access, which may be different from the actual physical access you see on the ground. You should understand what can happen when they are not the same: your neighbor may be able to cut off your access.
Typically, the legal access, or “easement”, is described in the deed, which governs the length, width and location of the “easement.” Dirt roads and common sense may not control the situation. As a general rule, legal easement rights cannot be changed without the obtaining the agreement of the person who owns the land on which the easement crosses.
It can be confusing to compare the legal description of an “easement” and a graded roadway on a parcel. The buyer hopes the graded roadway or dirt driveway - the physical access - is the same as the written description or legal easement. The description is usually written in technical language called “metes and bounds” which may not easily translate into natural terrain features, such as a graded roadway. Confirm legal access to the property by having a professional survey completed. After the survey is completed, a real dilemma may surface.
In Arizona, it is not unusual to find land in rural areas where the unpaved roads and driveways are gravel or simply hard-packed dirt that meander between shrubs, trees and washes. With survey in hand, you may realize that the roadway that just led you to your parcel is not the access that allows you to reach your property “legally”. In fact, you may realize that the “legal” access does not allow you to physically reach your property because of the terrain (without the use of earth-moving equipment).
The first possible solution is to negotiate with the neighbors. It may be possible to change the legal easement to match the existing physical access by written agreement. That would be the quickest, cleanest, safest, and likely the least expensive way to fix the problem. It would require both a survey and a lawyer to prepare and record an “express easement” in the County Recorder’s office.
If an agreement cannot be reached, there are a few principles of law that may help to establish a maneuverable ingress and egress. However, sometimes what may be reasonable or necessary to the buyer for access to the land does not control the legal situation.
A court may find an “implied easement”. Generally speaking, the property over which you need the easement must adjoin your property and the route must be both long established and necessary for access. This would most often apply to a parcel with an existing road that is being split. It is better to make sure that the easement is recorded in the deed for both parcels. Think and read the deed before you buy.
An easement by “necessity” may be available, if there are no other access options. A court will be very reluctant to force an easement on neighboring property if there is any other reasonable alternative. The hardship imposed by the proposed easement will be compared to the “need” for the easement.
An easement by use or “adverse possession” may be available when the access has existed for a number of years before the neighbor tries to close it off. This period is typically ten years, but may be shorter under certain circumstances.
When purchasing land in Arizona, there simply is no place for “assumptions” about access roads and driveways. It is necessary to do careful research and investigation to be sure that you are actually buying is what you think you are buying. It is much better to fix the access problem before you buy than after a purchase. We also recommend purchasing an extended policy of title insurance.
About the authors: Valerie Marciano and Adam Kunz
Valerie Marciano practice areas include Bankruptcy, Litigation, Corporate Transactions, and Real Estate. Val received her B.A. from University of Arizona, cum laude, in 1980 and her J.D. from University of Arizona in 1985. She was admitted to the Arizona State Bar in 1983 and U.S. District Court, District of Arizona in 1983.
Adam Kunz practice areas include Employment, Insurance Coverage, Intellectual Property, Litigation, and Pest Control. Adam received his B.A. from Brigham Young University in 1994 and received his J.D. from J. Reuben Clark Law School, Brigham Young University in 1997.