When a person or entity has an easement, they have the right to go onto property that belongs to another for a limited purpose.? When more than one party shares an interest in an easement, it’s crucial to clearly understand each party’s responsibilities for maintaining and making improvements to the impacted property. Otherwise, the easement property could fall into disrepair rendering it unusable or even hazardous for the parcel?s owner and easement holders. If you have an easement, you will need to know your easement maintenance
Arizona Easement Maintenance
Express and Implied Easements
In Arizona, easements can be created through a formal document, or they may occur due to the circumstances surrounding the property. When an easement is established through a written agreement such as a contract or deed, it is referred to as an express easement.
Easements can also be formed out of necessity or through another party?s ongoing use of another?s property (prescriptive use). When an easement is created outside of a formal document or agreement, it is called an implied easement. Easements by necessity often arise when a property owner is landlocked and must cross another parcel to come and go from their land. Prescriptive easements can occur when a party makes particular use of another’s property openly, without the owner’s permission, uninterrupted, for at least ten years. In most instances, implied easements are created through legal proceedings after a court considers evidence of the easement’s necessity or existence.
Express Easement Language
If the easement at issue is an express easement, it may be relatively simple to determine who is responsible for easement maintenance obligations. That being said, not all express easements use clear, specific language. If the easement plainly describes who is responsible for easement maintenance, the document will control, and the named party will be responsible. However, if the easement language is ambiguous, the parties may have to turn to the court for interpretation. When easement language does not mention maintenance responsibility, the issue can?t be addressed by the document.
Easement Holder Obligations
In Arizona, absent express language regarding the duty to repair or maintain an easement, the easement owners share the obligation. This means that easement holders who incur expenses can ask other easement holders to pay some of the costs associated with maintaining or repairing the easement. In general, the parties’ expenses should be proportionate to their respective use of the easement.
Shared easement expense does not include costs associated with improving the easement, however. If, for example, one easement holder wanted to add landscaping or upgrade a paved road, the other easement holders probably wouldn’t be required to share in these expenses.
Easements can be complicated, and it’s not always clear how to resolve disputes and apportion expenses. If you have concerns regarding an easement in Arizona, you should contact an experienced Arizona real estate attorney to assess your issue. Your attorney can review the facts and circumstances with you and help you determine your legal options.
Laura B. Bramnick is an Arizona real estate attorney with the knowledge and experience you need to protect your interests during every stage of your real estate matter. If you are seeking an exceptional, client-driven real estate lawyer in Scottsdale, Phoenix, Sedona, and throughout the State of Arizona, contact Laura B. Bramnick to schedule your consultation.