Presciptive easement

What is the name of your state? Arizona

I purchased property in rural Arizona about 8 months ago. At the time of the purchase I was informed the following:

* The neighbor had used a road that crossed the property to access his property from 1983 to 1997.

* He stopped using it in 1997. (Through research at the County Recorder's office, we found that he had been quit claimed an easement over another neighbor's property.)

* He began using the road again in April of 2003. He claimed it was temporary while he established a permanent access to his property. Since it was temporary, the previous owner gave him permission. (Also through research, we found that he had quit claimed his easement back to the other neighbor. We don't know why.)

He continues to use the road as of today and when confronted with the issue, he conveniently does not recall ever saying it was a temporary situation. He now claims the right to use the road by prescriptive easement. In Arizona, I believe its 10 years of usage.

He does have a deeded easement to his property which he refuses to use as he does not wish to confront yet another neighbor. Nor does he wish to incur the cost of developing the easement into a usable road. So we have, I believe, determined that he not entitled to an easement by necessity.

So, my questions are these:

Is six years of nonuse long enough to terminate the prescriptive easement?

If so, while he does now have a permissive easement, can it be revoked?

We have been in contact with a local attorney but he was somewhat less than helpful as this is a small town and everybody knows everybody. If you know what I mean.

Other than advice to contact a different attorney, any information regarding prescriptive and permissive easements and the termination of such would be very helpful.

Thank you

Thall2 said:

What is the name of your state? Arizona

I purchased property in rural Arizona about 8 months ago. At the time of the purchase I was informed the following:

* The neighbor had used a road that crossed the property to access his property from 1983 to 1997.

* He stopped using it in 1997. (Through research at the County Recorder's office, we found that he had been quit claimed an easement over another neighbor's property.)

* He began using the road again in April of 2003. He claimed it was temporary while he established a permanent access to his property. Since it was temporary, the previous owner gave him permission. (Also through research, we found that he had quit claimed his easement back to the other neighbor. We don't know why.)

He continues to use the road as of today and when confronted with the issue, he conveniently does not recall ever saying it was a temporary situation. He now claims the right to use the road by prescriptive easement. In Arizona, I believe its 10 years of usage.

He does have a deeded easement to his property which he refuses to use as he does not wish to confront yet another neighbor. Nor does he wish to incur the cost of developing the easement into a usable road. So we have, I believe, determined that he not entitled to an easement by necessity.

So, my questions are these:

Is six years of nonuse long enough to terminate the prescriptive easement?

If so, while he does now have a permissive easement, can it be revoked?

We have been in contact with a local attorney but he was somewhat less than helpful as this is a small town and everybody knows everybody. If you know what I mean.

Other than advice to contact a different attorney, any information regarding prescriptive and permissive easements and the termination of such would be very helpful.

Thank you

Click to expand...

**A: too complicated for a response over the internet. An attorney would need to review all the title reports, recorded easements etc.

THALL2 - I can sympathize with your situation as I am currently experiencing an easement situation. (See my posting: Sweet Home - in Alabama). Am experiencing the "small town" situation myself.

I am not a real estate attorney, but have been reading and researching easements due to my litigation. I have a very experienced RE attorney (50 yrs) and this is what I have learned:

A prescriptive easement can be terminated in 2 ways:
1- by receiving parties filing termination - on record.
2 - abandonment. (Not sure of the timeframe.) If you can prove that he "abandoned" this particular easement, and was using another, you may have a case to terminate the easement.

Also- an easement my necessity is created ONLY when there is not another access to the property. In other words, it is NECESSARY in order to get to the property because no other access exists. An easement by necessity is created when a parcel is landlocked (not adjacent or contiguous to a public road) AND no other access exisits.
Now - if a judge rules that his deeded easement is not "adequate or reasonable", he could be granted an easement by necessity. "Adequate & reasonable" should mean it is not thru a swamp or over a ravine. However, you need to read my posting and see my experience with judge's interpretation of this.

Remember - Prescriptive easement means he has never had any permission to use it, and has done so anyway for a period of so many years (different states have different time statues). It is a legal way to force an easement on someone else's property. Most people do not believe this law exists.

Permissive use can be revolked by the owner at any time. It doesn't give any permanent rights to the user.

You definitely need to seek advice of a GOOD R.E. attorney.
Beware - if you use one from outside your small town, the "playing field" in the courtroom could very easily tilted - not in your favor. :-(

Respectfully - Sweet Home Alabama