Arizona Court of Appeals Issues Federal Land Patent Easement Decision

In Underwood v. Wilczynski, Division Two of the Arizona Court of Appeals issued an opinion clarifying certain rules applicable to easements granted pursuant to a federal land patent under the Small Tracts Act; 43 U.S.C. §§ 682a through 682e (repealed 1976). This case arose in Pinal County, so Division Two, located in Tucson, decided the appeal.

The case involved a dispute between three residential landowners: a trust, Underwood, and Wilczynski. Wilczynski owned landlocked property that required access through either the trust property or Underwood’s property. The Wilczynskis argued their property had legal access pursuant to 33-foot easements granted in federal land patents (FLPs) that ran along the boundaries of the trust and Underwood properties.

The Court of Appeals upheld the basis of the trial court’s ruling, which was summary judgment in favor of the Wilczynskis granting them access through the Underwood property (the trust did not dispute that Wilczynski could have access through the trust property). In upholding the ruling (and also vacating some portions of the actual judgment, which the Court of Appeals found had some technical errors), the Court of Appeals clarified some unique aspects of FLP easements:

1. FLP easements may only be used for access if necessary - if other physical and legal access to a parcel exists, the FLP easements are not necessary and therefore may not be used for convenience.

2. FLP easements, when necessary, may not necessarily be used to the full extent of their grant like other easements. In Underwood, the Court of Appeals found it was incorrect to say the Wilczynskis could use the entire 33-foot easement to enter the Wilczynski property when 33 feet was not necessary to construct an adequate access road. That is unlike other express easements that may be used as a matter of right up to the full extent of the express grant.

3. If a parcel needs to use an FLP easement out of necessity and has multiple FLP easement options to use for access (here, the Wilczynskis could have placed a road entirely on the trust property, entirely on the Underwood property, or half on both properties (this last option is the one the Wilczynskis chose)), the parcel needing access may choose where to place its access, and the burdened property owners (the trust and Underwood) cannot ask the court to force the parcel needing access to choose differently based on some external criteria.

Unique rules apply to FLP easements that make the legal rights and obligations of those easements slightly different than express easements in Arizona. The Court of Appeals does not issue a large number of opinions dealing with easements, and it was interesting to see how it dealt with these unique issues.

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.