Confirm Your Easement Access
Have you purchased or handled a sale of rural land with a
winding, dusty private driveway that crossed neighboring property
once or twice before reaching the public road? Did you compare that
driveway with the property deed, to see if the deed included an
"easement" for the driveway? Did the legal description of the
easement actually match the driveway's layout? When you are buying
unimproved land, it is essential that you establish that the
property has legal access, which may be different from the actual
physical access you see on the ground. You should understand what
can happen when they are not the same: your neighbor may be able to
cut off your access.
Typically, the legal access, or "easement", is described in the
deed, which governs the length, width and location of the
"easement." Dirt roads and common sense may not control the
situation. As a general rule, legal easement rights cannot be
changed without the obtaining the agreement of the person who owns
the land on which the easement crosses.
It can be confusing to compare the legal description of an
"easement" and a graded roadway on a parcel. The buyer hopes the
graded roadway or dirt driveway - the physical access - is the same
as the written description or legal easement. The description is
usually written in technical language called "metes and bounds"
which may not easily translate into natural terrain features, such
as a graded roadway. Confirm legal access to the property by having
a professional survey completed. After the survey is completed, a
real dilemma may surface.
In Arizona, it is not unusual to find land in rural areas where
the unpaved roads and driveways are gravel or simply hard-packed
dirt that meander between shrubs, trees and washes. With survey in
hand, you may realize that the roadway that just led you to your
parcel is not the access that allows you to reach your property
"legally". In fact, you may realize that the "legal" access does
not allow you to physically reach your property because of the
terrain (without the use of earth-moving equipment).
The first possible solution is to negotiate with the neighbors.
It may be possible to change the legal easement to match the
existing physical access by written agreement. That would be the
quickest, cleanest, safest, and likely the least expensive way to
fix the problem. It would require both a survey and a lawyer to
prepare and record an "express easement" in the County Recorder's
If an agreement cannot be reached, there are a few principles of
law that may help to establish a maneuverable ingress and egress.
However, sometimes what may be reasonable or necessary to the buyer
for access to the land does not control the legal situation.
A court may find an "implied easement". Generally speaking, the
property over which you need the easement must adjoin your property
and the route must be both long established and necessary for
access. This would most often apply to a parcel with an existing
road that is being split. It is better to make sure that the
easement is recorded in the deed for both parcels. Think and read
the deed before you buy.
An easement by "necessity" may be available, if there are no
other access options. A court will be very reluctant to force an
easement on neighboring property if there is any other reasonable
alternative. The hardship imposed by the proposed easement will be
compared to the "need" for the easement.
An easement by use or "adverse possession" may be available when
the access has existed for a number of years before the neighbor
tries to close it off. This period is typically ten years, but may
be shorter under certain circumstances.
When purchasing land in Arizona, there simply is no place for
"assumptions" about access roads and driveways. It is necessary to
do careful research and investigation to be sure that you are
actually buying is what you think you are buying. It is much better
to fix the access problem before you buy than after a purchase. We
also recommend purchasing an extended policy of title
About the authors: Valerie Marciano and Adam Kunz
Valerie Marciano practice areas include Bankruptcy,
Litigation, Corporate Transactions, and Real Estate. Val received
her B.A. from University of Arizona, cum laude, in 1980 and her
J.D. from University of Arizona in 1985. She was admitted to the
Arizona State Bar in 1983 and U.S. District Court, District of
Arizona in 1983.
Adam Kunz practice areas include Employment, Insurance
Coverage, Intellectual Property, Litigation, and Pest Control. Adam
received his B.A. from Brigham Young University in 1994 and
received his J.D. from J. Reuben Clark Law School, Brigham Young
University in 1997.
3200 North Central Avenue
. Phoenix . Arizona