If you have been out in the more rural parts of Arizona…and even the outlying areas in the Metro Phoenix Area…you will notice that there are many homes that share an access road to get to the property. This is termed an easement. Simply put it is the right to use property that is not yours in order to access your property.
When purchasing such a property it is imperative that the buyer understand the rights and obligations surrounding the easement. It can result in a GIANT headache if you buy something you have no legal right to access.
Recently a new court of appeals decision came down. The below is information provided by local attorneys Combs Law Group, P.C.:
“On January 13, 2011, the Court of Appeals issued a new decision regarding easements in Arizona. See Freeman v. Sorchych, 599 Ariz. Adv. Rep. 20, 2011 WL 204404 (App. 2011). In Freeman, two neighbors, the Freemans and the Sorchychs, shared an easement as the sole means of access to their respective homes. Both neighbors used the easement equally. Although the easement provided that both property owners had the right to use the easement, the easement was silent as to who was responsible for maintaining the easement. Due to erosion from rain and other environmental factors, the easement required periodic maintenance and grading.
When the time came to repair the easement, the Freemans requested that the Sorchychs share in the costs – by the time of trial in 2009, the Freemans’ costs totaled $21,657.16. The Sorchychs, however, declined the Freemans’ request and a lawsuit ensued. The trial court ruled that although the Freemans presented an equitable argument for reimbursement, the Sorchychs had no contractual or other obligation to pay for the maintenance and repairs to the shared easement.
The Court of Appeals reversed the trial court and ruled that, even if the easement does not expressly provide for a duty to repair or maintain the easement, the owners of the easement have the shared duty to repair and maintain the easement. Freeman, 599 Ariz. Adv. Rep. at 3. Consequently, neighbors can compel each other to share the costs for any necessary repair and maintenance costs of a shared easement. Notably, theFreeman decision does not require neighbors to share the costs “fifty/fifty.” Instead, each party’s contribution should be based on an equitable apportionment determined by relevant factors, such as each party’s proportionate use of the easement. Also, although neighbors are required to share the costs to maintain easements, they are not required to share costs to improve easements, e.g., upgrade easement from dirt road to paved road.”
Long story short…if you use the easement you will be required to share in the expense of maintaining it. Sounds like a no-brainer to me…but I am not an attorney! 😉
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