Neighbor Wants to Use Our Easement to Access His Property

[Desertdog]

My question involves real estate located in the State of: Arizona

I live in a rural subdivision. There were easements established when the property was subdivided. All of our roads are easements. A developer that owns a parcel on the other side of ours wants to use the easement to access his property The easement states this:

The current and future owners of the parcels shown on .EXHIBIT "A" , hereafter called Grantees, their heirs and assigns, a
non-exclusive right-of-way and easement. for ingress, egress and utilities, on, over, under and across the following described property:
SEE EXHIBIT "A" and "B" ATTACHED HERETO and made a part hereof.

This easement is granted for the use and benefit of Grantees, as owners of the following described property:
All parcels as shown on EXHIBIT "A" attached hereto.
This easement is granted for the use and benefit of Grantees, their heirs and assigns, and said casement shall be appurtenant, to and run with the title to the property of the Grantees described above. Nothing contained herein shall be construed to be a convoyance of the fee simple title.
To have and to hold the above described right-of-way and easement unto the said Grantees and their heirs and assigns forever.

My opinion is the easement as written is for the benefit of the property owners in the subdivision and was never intended or allowed to be used by another property owner for development and access of his property. This property owner is not land locked and has another means of access. Of course the neighbors at his legal access point are not happy with him either. He has of course promised to fix the dirt road etc.No other owner I have spoken with has any interest in allowing access. Thank you for any input.

[Mr. Knowitall]

If you are stating that you have a non-exclusive easement to use the right-of-way to access your property, then the owner of the servient estate can make or allow any other use of the right-of-way that does not unreasonably burden your rights.

[Desertdog]

Are you stating that non property owners, basically everyone else in the area or vicinity that owns other parcel outside of our subdivision is considered a servient estate ( like the property owners) and can use the easement for any purpose they wish as long as they don't encumber us? Any precidents on this you can share?

[budwad]

If you are stating that you have a non-exclusive easement to use the right-of-way to access your property, then the owner of the servient estate can make or allow any other use of the right-of-way that does not unreasonably burden your rights.

This is one of those times where I am going to disagree because the grant refers to a recorded subdivision plat. If all the roads are easements and the owners of the plots are the servient estates, then the non-exclusive use only refers to those property owners if there is no dedication to public use.

A property that is not part of the recorded subdivision has no right to use the easement.

Are you stating that non property owners, basically everyone else in the area or vicinity that owns other parcel outside of our subdivision is considered a servient estate ( like the property owners) and can use the easement for any purpose they wish as long as they don't encumber us? Any precidents on this you can share?

The servient estates are those properties that abut the easements (generally speaking). The servient estate are those lands where the easement is on their lands. With a road, that is generally to the midpoint of the road. There are no other servient estates. This is not an issue of overburdening the easement. The servient estates and the dominant estates are all in the subdivision. Someone outside of the subdivision has no rights whatsoever.

[Mr. Knowitall]

This is one of those times where I am going to disagree because the grant refers to a recorded subdivision plat. If all the roads are easements and the owners of the plots are the servient estates, then the non-exclusive use only refers to those property owners if there is no dedication to public use.

A property that is not part of the recorded subdivision has no right to use the easement.

You seem to be working from the perspective that the easement runs over land owned by the members of the HOA, or land that is owned by the HOA, in which case the owners of the servient estate are not obligated to allow a third party to use the easement. My interpretation was that this is a third party's land. It would be helpful to have that issue clarified -- but either way, as long as the servient estate(s) permit the use and the use does not overburden the easement, I'm not seeing either granting language or case law that would prevent the servient estate(s) from allowing third parties to use the easement to cross their land. What are you looking at?

[budwad]

I am looking at the grant language that OP posted where it says:

The current and future owners of the parcels shown on .EXHIBIT "A" , hereafter called Grantees, their heirs and assigns, a non-exclusive right-of-way and easement. for ingress, egress and utilities, on, over, under and across the following described property: SEE EXHIBIT "A" and "B" ATTACHED HERETO and made a part hereof.

And that:

All of our roads are easements

It is well settled law that easements that are granted by plat (or a reference to a plat) are just as binding as those granted by express language. I think we can agree on that point.

With these two points in mind, a subdivision plat that shows private roads would typically show that each property that abuts the road owns to the centerline of the easement. That would make each of those properties a servient estate to every other property in the subdivision. At the same time, each property in the subdivision is also a dominant estate with the right to use the private roads. That right does not extend beyond the boundaries of the subdivision unless there has been either a common law or express dedication to some public use of the roads.

This easement is granted for the use and benefit of Grantees, as owners of the following described property: All parcels as shown on EXHIBIT "A" attached hereto.

There does not need to be a HOA that would own the common elements of a subdivision. The properties are all owned in fee by the title holders with an easement on them.

So there is not one servient estate in a subdivision that could give permission or grant an easement to a property owner that is not included in the original subdivision. A neighboring developer has no rights to use the roads.

If you recall, several months ago there was a question about the placement of a dumpster on just such a private road in a subdivision. I posted the case law that that said what I said above. I don't remember what state it was and I don't have the time right now to look for Arizona law. But I will make an attempt if need be at another time.

Edit: It was California post #17. https://www.expertlaw.com/forums/sho...=204289&page=2

[Mr. Knowitall]

That would make each of those properties a servient estate to every other property in the subdivision. At the same time, each property in the subdivision is also a dominant estate with the right to use the private roads. That right does not extend beyond the boundaries of the subdivision unless there has been either a common law or express dedication to some public use of the roads.

And you're getting to why I have a different interpretation of what is happening than you do -- because if the servient estates belong to the homeowners, they don't have to permit the developer to use their lands. But again, if the servient estates agree to the use and it does not unreasonably interfere with the existing easement, I'm still not seeing any reason why they cannot permit the use.

If you recall, several months ago there was a question about the placement of a dumpster on just such a private road in a subdivision....

Leaving aside the problem you anticipated (Arizona is not bound by California law), nothing in that case suggests that the developer could not have obtained an easement to use the right-of-way had it not already obtained one through its purchase of properties that benefited from the existing easement.

[budwad]

I see no disagreement between us. If the servient/dominant estates want to grant the use of the easement to an outside property, they are free to do so. But since OP is one of them, I believe he could stop it.

The California case was illustrative as to the legal concept that all the properties in the subdivision were both servient and dominant estates at the same time. I haven't' been able to find an Arizona case similar to it.