In real estate law, there are a startling number of different types of rights that a person may have concerning a parcel of land. It is not just as simple as, well, “fee simple,” which is full and complete ownership over a parcel, with which one may do as one pleases (subject, of course, to laws of conduct, code,and zoning). One of the types of right over land that confounds many at first is that of easements—and particularly a subcategory of these that is referred to as “implied easement.”
An easement is the right of a party to legally access and/or use a portion of someone else’s real property for a limited purpose. A familiar example of easements includes the areas needed to run gas or power lines beneath a property—and the utility company’s right to dig in order to reach these for whatever reason.
In Arizona easements are established in a number of ways. Sometimes they are created expressly, by contract, deed, or other written agreement. Sometimes they are formed by necessity, such as when a parcel of property is “landlocked” and the owner needs some way to access it. And sometimes they are earned by “prescription,” which means the party to which the easement applies has been using it that way openly for at least ten years. And then there is the concept of “implied easement.”
Implied easements are often thought of as “court-created” easements. This is because, for the most part, they are determined to be already in existence by a court that is overseeing a property dispute. The court will base this easement’s existence on the facts and circumstances of a property transfer, from which the court may determine that these indicate that the parties intended an easement to exist—or when, as mentioned above, such an easement is “necessary”—even if the parties did not write the easement into the deed or contract or record it in any other way. Often such implied easements occur when a landowner has subdivided a parcel of property and sold the smaller pieces without expressly defining how each property should be accessed.
When you’re looking to buy a property in Phoenix or anywhere else in the state of Arizona, you’ll need an experienced attorney with strong scruples by your side in case someone challenges your right to access it—or for any other reason. At Provident Law, 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 structure, negotiate and document a variety of real estate and financing transactions, including leases, purchase and sale agreements, loans and development agreements for a variety of commercial and residential projects. Contact us if you’d like us to give you a hand.
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.com or at 480-388-3343.