Easements run like shattered cobwebs across the state of Arizona. These property rights provide one person a right to use another person’s property for certain limited uses—and this limited use is considered a form of real estate interest that the property owner cannot simply revoke at will under law.
In the cities, large parcels of land first recorded by homesteaders, the railroads, and the bureaucracy that went westward with them have been subdivided again and again into bit parcels, and many of these have left easements implicitly reserved in favor of otherwise landlocked properties—easements for clear travel across one property to the other, interior property. Naturally, this affects the primary landowner’s right to use their property as they wish. They can’t obstruct the use of the easement without potentially facing legal repercussions.
In this scenario, the primary landowner would be referred to in easement law as the “dominant” owner of rights over the portion of the property granted for use by the easement, and the owner of just the right to easement would be considered the “servient” owner. The type of easement at issue in this example is an “affirmative” easement—in particular a form of affirmative easement known as “easement appurtenant,” granting physical use and enjoyment of the space upon the land that is covered by the easement. Another type of easement is the “negative” easement, in which an easement holder is entitled to compel the owner of another property to cease certain activities on their own property. (A growing form of negative easement in the West is the “conservation easement,” which the granters of the easement on their own land create in order to conserve natural lands, and which requires that they themselves—and owners of the property thereafter—refrain from developing that portion of the property, and often places its care (and right to sue) into the hands of an organization dedicated to land conservation.)
The question becomes, when for whatever reason someone decides an easement is no longer proper to a given situation: How can an easement be terminated?
The easy answer is: in a number of ways. Among them:
- 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—Also referred to as “Unity of Ownership,” this doctrine decrees that where the dominant and servient properties become owned by the same party, the easement terminates.
- Abandonment—Where an easement holder takes physical action with clear intent to abandon the easement permanently. The easement-holder planting a hedgerow that fully obstructs the path of the easement could be considered to count as such an action.
- Release—Here 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, of course, 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, whether in Scottsdale or anywhere else in the state of Arizona, you’ll need an experienced attorney with strong scruples on your side. Provident Law’s real estate attorneys represent parties on either side of real estate and financing transactions, including lenders, borrowers, buyers, sellers, landlords, tenants, trustees, guarantors, shareholders, partners, and others. We structure, negotiate and document a variety of real estate and financing transactions, such as leases, purchase and sale agreements, loans and development agreements for a variety of commercial and residential projects. Contact us for more details.
Christopher J. Charles is the founder and Managing Partner of Provident Law®. He is a State Bar Certified Real Estate Specialist and a former “Broker Hotline Attorney” for the Arizona Association of REALTORS® (the “AAR”). Mr. Charles holds the AV® Preeminent Rating by the Martindale-Hubbell Peer Review Ratings system which connotes the highest possible rating in both legal ability and ethical standards. He serves as an Arbitrator and Mediator for the AAR regarding real estate disputes; and he served on the State Bar of Arizona’s Civil Jury Instructions Committee where he helped draft the Agency Instructions and the Residential Landlord/Tenant Eviction Jury Instructions.
Christopher is a licensed Real Estate Instructor and he teaches continuing education classes at the Arizona School of Real Estate and Business. He can be reached at Chris@ProvidentLawyers.comor at 480-388-3343.