Laying Down The Law: Understanding Easements

Christopher J. Charles, Esq. Provident Law	Bryan Eastin, Esq. Provident Law

The Court of Appeals recently issued an opinion explaining how easements can be extinguished in certain circumstances. Specifically, the Court ruled, as a matter of first impression, that common ownership of adjoining parcels might eradicate an easement even if the title owners are technically different. Here is why this matters.

Most real estate is subject to one form of an easement or another. Most commonly, real estate is encumbered by utility easements. These give utility companies permission to run their equipment across the property to provide Internet, electricity, water, gas, and cable. Utility easements also grant the utility companies permission to enter the property to service and maintain their equipment. The second most common form of easement is for ingress and egress. For instance, easements are commonly used to grant access across one neighboring property to the next or for public roadways. Easements can also provide others the right to physically access property for a walking path (to access a nearby park for example) or for servicing a common well, or other reasons.

Easements preserve the property owner’s title to their property while providing others the limited right to use the owner’s property for specified purposes. In Babrowski v. Bartlett, 2019 WL 2004052 (App. 2019), the Court of Appeals addressed the question of whether an easement is extinguished if the adjoining parcels are owned by common ownership. The well-established merger of title doctrine provides that when one person obtains both the greater and the lesser interest in the same property, merger occurs and the lesser interest is extinguished. 3 R. Powell, THE LAW OF REAL PROPERTY § 459 (1990 Rev.). In Babrowski, the prior owner Jack Lewis acquired a large acreage parcel. In 1999, Mr. Lewis subdivided the parcel into smaller parcels and in 2000 he recorded an express easement to provide the parcels with legal and physical access. Mr. Lewis then sold the parcels. Later, the Jacob family acquired two of the adjoining parcels but failed to execute and record an easement. Specifically, Mr. and Mrs. Andrew J. Jacob acquired one of the parcels and their family trust acquired one of the adjoining parcels.

The Jacob family later sold their lots and a dispute concerning access arose between the neighboring owners. The Court of Appeals found that after the Jacob family acquired the parcels, the access easement was extinguished under the doctrine of merger, and they failed to record a new express easement. The Court of Appeals explained that merger extinguishes an easement because the common owner already possesses all rights on both properties to the easement (i.e. the property granting the easement and the property using the easement).

The new owner argued that merger never occurred because technically, one lot was held in Ms. Jacob’s name and the adjoining lot was held by the family trust. The Court of Appeals disagreed because it found that although there was a technical difference in ownership, merger still applied “when the burdens and benefits are united in a single person, or group of persons” because the easement ceases to serve any function and no one has an interest in enforcing it. Id.

To avoid this problem, the Jacob family could have recorded an express easement between their lots before selling the lots to the third party. Put another way, as part of its due diligence, the buyer could have demanded an express easement before closing the transaction.The Babrowski case involved a variety of other legal issues (i.e. foreclosure, lot splits, private condemnation, alleged implied easements) that cannot be adequately addressed here. But the single issue concerning the extinguished easement created alleged damages of approximately $100,000.00. Easements matter. And careful attention to title reports matter.

This case is illustrative of how technical easements can be, including nuances about their creation, enforcement, and potential extinguishment from one conveyance to the next. The existence or lack of existence can materially impact an owner’s use of their property and the value of the property. Here are the key takeaways:

1. When purchasing real estate, review the Title Report closely for all liens and encumbrances, including easements.
2. When selling real estate, be sure to disclose the existence of any easements (of if you do not have an easement and one is needed to access your property, the lack of access should be disclosed).
3. If your property is burdened or benefitted with an easement, make sure you understand exactly what that burden or benefit is.
4. If you have an easement that is not being utilized properly, see an attorney sooner than later.
5. If someone is utilizing your property without your permission, seek counsel because such use can ripen into an easement.

If you or someone you know has questions about easements, contact our office today to schedule a consultation with Mr. Eastin or Mr. Charles.

Bryan L. Eastin is an Attorney with Provident Law® practicing in the areas of trust and estate administration and litigation, guardianships and conservatorships, and real estate. Bryan’s practice includes representation of private fiduciaries appointed by the court to serve as guardians, conservators, personal representatives and/or as trustees. Bryan is admitted to practice in Arizona’s state and federal courts, and he is currently a member of the Arizona State Bar Association and Maricopa County Bar Association. He can be reached via email at Bryan@ProvidentLawyers.com.

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.