How Can I Get to My Land?
September 4, 2019
Partner, Jaburg | Wilk Attorneys at Law
Owning a piece of land without any means of accessing it is akin to owning a car without the keys. While the absence of access to land, like the absence of keys to a car does not have any impact on the fact of ownership, it has a huge impact on the value of what is owned. With that in mind, let’s consider the several ways that a landowner may have access to his or her land.
The vast majority of land is readily accessible by means of public road. In some instances, however, an issue arises over whether or not a particular road is, in fact, a “public” road usable by any member of the public, including a landowner whose property abuts such road. To resolve such issue, it may be necessary to investigate whether the road was ever formally dedicated and accepted, whether there are any recorded documents establishing the road as being a public road, and whether it was assigned a name and/or number. These issues typically arise in rural areas, and in some instances, it may be difficult to determine whether or not a particular roadway is truly a public road.
If a parcel of land does not abut a public road, then the property will need an easement for ingress and egress over the private land owned by others in order to access a public road. There are three distinct types of easements that that may exist, and anyone of them will be sufficient to allow an otherwise “landlocked” landowner to access their property. The first, and easiest to establish, type of easement is an “express easement.” As its name implies, an express easement is a grant by another property owner, whose property is referred to as the “servient tenement,” to allow the owner of another property, whose property is referred to as the “dominant tenement,” to traverse their property for the purpose of access.
A second type of easement is a “prescriptive easement.” To establish such an easement in Arizona, the party claiming the benefit of such an easement must file a lawsuit and prove, by clear and convincing evidence, that the land subject to the easement has been actually and visibly used, under a claim of right, for a period of at least ten consecutive years in such a manner as was hostile to the title of the burdened landowner. If it is unclear from the use that the user was using the purported easement in such a manner as to establish a legal right to use the property, or if the burdened landowner permissively allowed such use, the prescriptive easement claim may fail.
The third type of easement is an “easement by necessity.” This type of easement may be established when a property is truly “landlocked,” and there is no way to get to and from the property without going over the land of one or more adjoining landowners. If, however, there are alternative means of access that can be utilized, an easement by necessity is not available, even if it will be inconvenient or costly to build out and utilize such alternative.