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  1. #1
    Join Date
    Oct 2008
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    Default Does Servient Owner Have Right to Maintain or Improve Easement

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

    We have a situation where a developer building homes needs to upgrade the private easements for his ingress/egress to meet County codes. There are no "roads" all are a series of 40' wide by 660' long easements where each property owner owns 20' to the center line of the "road".

    The developers parcel is included in the written easement. The easement is silent on maintenance. The roads were originally dirt and most still are with folks throwing gravel down at times.

    The developer is not land locked and has another easement they can use which even gives them the right to improve it. It's a better route but I think more cost and legal problems.

    As a servient user of the easements he needs for access do they have a right to improve the easement if the dominant owner objects. They would pay the entire cost of improvements.

    Most owners do not want the developers improvements. It appears they are already taking legal action.

    The people on the main ingress/egress may have a shot at putting an undue burden on the road but this is AZ where developers come first.

  2. #2
    Join Date
    Nov 2013
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    Default Re: Does Servient Owner Have Right to Maintain or Improve Easement

    First let me see if I understand what you are saying. You are in a subdivision that has a platted right-of-way (ROW) and an express grant of an easement that is 20 feet from the center line of the ROW. So any property that abuts this ROW has the same 20 foot easement making the ROW 40 feet wide. Now along comes a developer that wants to improve the ROW for the purposes of gaining access to his property.

    As a servient user of the easements he needs for access do they have a right to improve the easement if the dominant owner objects. They would pay the entire cost of improvements.
    The answer is yes considering that they are the servient estate and they reserved the right to use the easement to access their property. As long as the servient estate does not impede the use of the easement by any of the dominant estates they can improve the easement within the bounds of the 40 feet.

    The people on the main ingress/egress may have a shot at putting an undue burden on the road but this is AZ where developers come first.
    I doubt you will be able to do that if the developer is the servient estate and he has reserved the right to use the easement for ingress/egress to his remaining property.

    Check with a local attorney.

  3. #3
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    Default Re: Does Servient Owner Have Right to Maintain or Improve Easement

    I looked at it as a private party having a right to improve someone else's property without their permission which doesn't seem correct. Being an easement that they have a vested right in puts it in a different light.

    In AZ these aren't subdivisions, they are land splits. If you want to call a series of individual easements (about 20, 10 acre lots make a one mile "road") a ROW I guess that works.

    Land splits were originally a way for people to get into the rural lifestyle cheaper. Like everything else that started with good intentions it has been abused to the limits by developers as a way to skirt subdivision requirements.

    If you want to know more search AZ land splits, wildcat subdivisions.

  4. #4
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    Default Re: Does Servient Owner Have Right to Maintain or Improve Easement

    I don't really need to search land splits or wildcat subdivisions to know easement common law. If the developer is the servient estate of the ROW then he has the right to improve it and use it unless there is something in the grant that says otherwise or he impedes the use by the dominant estates. That is the common law.

    The servient estate owns the land the dominant estate gets to use the land.

  5. #5
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    Default Re: Does Servient Owner Have Right to Maintain or Improve Easement

    I may have have had it backwards. The developer would be the easement holder (dominant) the easement owners (servient) property the developer needs to improve. So are you saying only the servient owner can make improvements across the easements or the dominant owner can to?

  6. #6
    Join Date
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    Ohio
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    Default Re: Does Servient Owner Have Right to Maintain or Improve Easement

    "The developers parcel is included in the written easement."

    Easements serve specific named parcels of land. As the developer's parcel is named in the easement, the developer is the dominant estate in the matter. It matters not that the developer has a another means of access to the parcel. The concept that the developer would be overburdening the easement by making improvements to better facilitate access to his served parcel is likely a non-starter.

  7. #7
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    Default Re: Does Servient Owner Have Right to Maintain or Improve Easement

    Quote Quoting Desertdog
    View Post
    I may have have had it backwards. The developer would be the easement holder (dominant) the easement owners (servient) property the developer needs to improve. So are you saying only the servient owner can make improvements across the easements or the dominant owner can to?
    So then let's recap. The developer is the dominant estate and the properties that abut the ROW on each side are each servient estates. With the grant silent on the maintenance, both the servient and dominant estates can make improvements as long as the servient estates do not imped the use of the easement by the dominant estate.

    Is the ROW also used for access to the servient estates? I assume it is making it a private road.

    In that case, each property that abuts the road are both servient and dominant to the other properties.

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