August 2014 Updates - Implied Easements and Easement Disputes: A Success Story

In July, I successfully defended two property owners against an interesting claim their neighbor made for an implied easement by way of necessity over their properties.

In Arizona, as in most states, an implied easement arises over the portion of an original parcel that retains access to a public street if the original parcel is split in two and the split results in one parcel losing access to the public road network. The slideshow below demonstrates the concept using three parcels instead of two. Note that these properties are for example only; they are not the properties involved in the litigation:

Before Condition - Parcel A has access through the alleyway and to East Golf Links Road 

After Condition - Parcel B has no access to either the alleyway or East Golf Links Road

An implied easement by way of necessity arises in favor of Parcel B over either Parcel A to East Golf Links Road or over Parcel C to the alleyway

In the litigated case, the owner of the landlocked parcel (similar to Parcel B in the above example) claimed an implied easement over properties that had once been held in common ownership (such as Parcels B and C in the example). However, two important subsequent transactions had occurred that made this litigation more interesting than the typical implied easement case. The owner of the landlocked parcel subsequently purchased adjacent property having access to the public road network, but then, for unknown reasons,  sold that adjacent property, leaving the parcel again landlocked. This slideshow illustrates the two further transactions:

Same setup - Parcel A has two points of access

Parcel B is now landlocked

The owner of Parcel B purchases adjacent property, Parcel D, giving Parcel B access through Parcel D to South Harrison Road

The owner of Parcel B sells Parcel D, leaving Parcel B again landlocked

The owner of Parcel B claims Parcel B still has the right to an implied easement by way of necessity over Parcels A and B

I was successful in arguing on summary judgment the Pima County Superior Court should apply the same logic an appeals court in Florida used in a similar case to hold that an implied easement by way of necessity disappears if the landlocked parcel subsequently gains access to the public road network and again loses it. A landlocked parcel owner should not be able to "reinvigorate" implied easements arising out of necessity if the landlocked parcel owner had previously solved his or her access issue but subsequently recreated the same problem of his or her own free will.

Implied easements present an interesting land use issue that arises more often than one would think. Having an experienced real estate attorney whom you trust can help resolve these disputes favorably before the litigation gets out of control.