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  1. #1
    Join Date
    Sep 2008

    Question Easement and Landlocked Driveway Problem

    My question involves real estate located in the State of: Washington (Pierce County): We bought this house in 2007 of which the property line was changed with an easement granted for access to our property many years ago 1980 (much more than 10 - again this increased the size of the property and changed the property line) at the back part of our property and nothing in the county paperwork states entrance to the property has to be at any certain part of the back of the property. Anyway everything was fine for 1 year with our neighbor, and had been previously for years with the previous owner of our property and this neighbor. Together in 2000, (the previous owner of ours & the neighbor next door) changed the access to our property and the joint area between them - so they could both use our driveway which goes down the sides of both properties at some point which made it easier for both (it gives access to something we both use). This added to the ease of use of ours and the jointly used area not to mention they completely eliminated the previous access point and driveway into the property and remade a new one at the back which gave better access for both. Not a problem. So the entire access to the property was removed and redone to another portion at the same back area of the property in the year 2000 there is no old driveway access to use anymore and so we have to, out of necessity, use this access for entrance to our property and the joint area as well as he uses it for the joint area. He decided he doesn't like my husband anymore due to the fact my husband got into an argument with another neighbor that is a friend of his! So now he says he owns the entire street up there and we now need to put in another access to our property and if we do anything he doesn't like, he will take away our access. Now in the property records from a way earlier easement described at the beginning of my paragraph (1980's) - the property line had changed due to the easement for driveway access and so the private road/street he refers to is on part of our property and the markers are clearly visible in one area 2/3 of the way over the road in one place and 1/4 way over the road in another. We aren't trying to do or take away anything he is wanting to take away ours or force us to pay to have a new driveway entrance constructed onto our property and he says he will use that to access the easement to both sides of our property lines for the joint access. We just want to be able to use everything the way it was when we bought it and none of this was even mentioned at purchase time - we are fine with him driving over the portion of the street that is ours and fine with the joint use area.
    Can he really landlock us like this and force us to have to put in a whole new access and driveway into our property so we enter from a different part of the street? Even though he and the previous owner IN 2000 both paid to have the previous access removed and new concrete put in the current AND ONLY access TO our property and driveway? In the property rights statement easement (to that back of the property I have been referring to) from 1980 it states COST OF MAINTENANCE: It is further understood and agreed that the parties of the first part will and do hereby assume and agree to pay one-half, and the parties of the second part will and do hereby assume and agree to pay one-half of the cost of maintaining the present private road over the respective easements herein granted. (this was from 1980).
    It seems to me that because of that we should have use of it...and the fact that our property markers are in places on the street (hard to explain -but the markers are there and measure out perfectly with the easement). When he told my husband that we have to put in another access to our property, my husband asked him what those markers were? The neighbor got extremely beligerent and started cussing profanity and said it was none of our business.

    thanks...we have a lawyer but they are having difficulty because it is not a prescriptive right due to the 10 years timeframe requirement and on the private road he pays taxes on that small piece. I worry every night and he harrasses us every day and is just being beligerent and extremely hostile. Thankyou for your help...

  2. #2
    Join Date
    Sep 2008

    Default Re: Easement Landlocked Driveway Issue

    does this apply to my situation?

    by Michael T. Denious
    All too often, a property owner will discover subsequent to purchasing land (perhaps not
    until months, or years later) that it lacks legal access, or is “landlocked.” If the owner is unable to
    obtain and record an easement over adjacent property to the nearest public road through the good
    graces of his neighbor or neighbors, he will have to take legal action to establish legal access.
    Often the owner will seek to invoke the private condemnation statute, discussed below.
    Depending on the circumstances, however, the owner may be entitled (and limited) to access
    through an alternative means, such as a prescriptive or implied easement. Following is a
    discussion of the various legal theories by which access may be established.
    Statutory Condemnation of Easement by Necessity
    Under A.R.S. 12-1202, an owner or a person entitled to the beneficial use of land that is
    “landlocked” may bring an action to condemn and take neighboring lands to the extent necessary
    to construct and maintain a “private way of necessity.” Thus, the statute vests an individual with
    a private right of condemnation to do what normally only a governmental entity would have the
    power to do. The justification for private condemnation is that landlocked land serves no purpose
    either for the owner or the public in general, and it is in the public interest to force a means of legal
    access. The plaintiff apparently gets to choose his route of access, and condemn so much land as
    is reasonably necessary to construct a proper road.
    The private condemnation statute has its limits, however. The power of condemnation
    brings with it the obligation to pay. As would be the case with a government entity, an individual
    who condemns adjacent land for access must compensate the person or persons whose lands are
    taken. Add this expense to his attorney’s fees and costs, and he ends up paying dearly for his legal
    access. His title insurance, if he has it, may not cover this expense.
    In addition, he must demonstrate that the condemnation is necessary; in other words, that
    his land is truly landlocked and has no adequate alternative means of access to the route sought to
    be condemned. Arizona courts construe this requirement strictly. See Solana Land Co. v.
    Murphey, 69 Ariz. 117, 210 P.2d 59 (1949); Siemsen v. Davis, 196 Ariz. 411, 998 P.2d 1084 (App.
    2000); Tobias v. Dailey, 196 Ariz. 418, 998 P.2d 1091 (App. 2000); Bickel v. Hansen, 169 Ariz.
    371, 819 P.2d 957 (App. 1991). In Solana, the Arizona Supreme Court held that the private
    condemnation statute permits a party to bring an action to condemn the private way of necessity
    across the land of another only where the party has no “adequate and convenient” outlet, and can
    show reasonable necessity to condemn the lands in question. Solana, 69 Ariz. at 125, 210 P.2d at
    The necessity requirement will usually be the primary issue in dispute, and the plaintiff
    should presume that the defendant or defendants, unless they are happy to have their lands taken in
    return for compensation, will attempt to show that the plaintiff already has access to his property
    through some overlooked alternative route. Thus, the plaintiff should be careful to first educate
    himself as to the potential alternative routes of access to his property, and be prepared to either
    prove or disprove that such access is legally and physically adequate.
    It may be that the plaintiff is aware of recorded legal access that is seen as physically
    inadequate. He should not presume that he will be entitled to condemn a more direct route, unless
    the facts are convincing that the alternative is far, far too burdensome. For example, in Bickel the
    court denied relief to a party seeking to condemn a direct route of access to his property where that
    party had an alternative outlet that was deemed to be adequate under the circumstances. That
    alternative, however, “was twice as long, was meandering, and would cost more.” Bickel, 169
    Ariz. at 374, 819 P.2d at 960.
    Even more confounding, it may be that the land has access through an unrecorded route,
    such as an implied easement or prescriptive easement. Even the existence of unrecorded,
    “implied” easements providing access to the property will defeat a condemnation claim. See
    Siemsen, 196 Ariz. at 414, 998 P.2d at 1087; Tobias, 196 Ariz. at 420-21, 998 P.2d at 1093-94.
    Where there is even an inference of access by an implied easement, the plaintiff fails to meet his
    burden to show reasonable necessity and cannot obtain relief under A.R.S. 12-1202. Thus, it is
    the plaintiff’s burden to disprove the existence of an implied easement. See Siemsen, 196 Ariz. at
    414, 998 P.2d at 1087; Tobias, 196 Ariz. at 420-21, 998 P.2d at 1093-94.
    Of course, it may be advantageous to the plaintiff to establish, rather than disprove, access
    through an implied or prescriptive easement theory, because he will not have to pay compensation
    as he would have to do under the statutory condemnation route. Either way, the plaintiff should
    consider all of the alternatives available.
    Prescriptive Easement
    The prescriptive easement, stated simply, is the adverse possession rule as applied to
    easements. The required elements, as set forth in LaRue v. Kosich, 66 Ariz. 299, 187 P.2d 642
    (1947), are that the use has been actual, open and notorious, under a claim of right, and hostile to
    the owner’s title. The use must also have been continuous for at least ten years. See A.R.S.
    12-521 & 12-526.
    The prescriptive easement will typically be difficult to prove, because the law disfavors
    adverse possession rights. For example, any indication that the alleged “hostile” use was done
    with the permission of the owner will probably defeat the claim.
    Furthermore, even to the extent the prescriptive easement can be established, the use and
    scope of the prescriptive easement is limited to that which led to the creation of the easement in the
    first place. For example, a prescriptive easement based upon prior use as a hiking or horse trail,
    or a mining road, may be too narrow, rocky, or steep to be of use to the homeowner who requires
    access for his SUV.
    Implied Easement or Way of Necessity
    The implied easement or way of necessity is a creature of legal fiction. It is not a matter
    of record, so you won’t see it in a title search. It is also not necessarily a matter of physical use or
    existence, so you won’t necessarily see it by looking at the land. The general rule for common-law
    implied easements is set forth in Bickel:
    Under the common law, where land is sold that has no outlet, the vendor by
    implication of the law grants ingress and egress over the parcel to which he retains
    ownership, enabling the purchaser to have access to his property.
    169 Ariz. at 374, 819 P.2d at 960. The court in Bickel further explained that “a way of necessity
    results from the application of the presumption that whenever a party conveys property he conveys
    whatever is necessary for the beneficial use of that property and retains whatever is necessary for
    the beneficial use of the land he still possesses.” Id. (citing Hellberg v. Coffin Sheep Company,
    404 P.2d 770 (Wash. 1965)). The specific elements of an implied way of necessity are original
    unity of title, subsequent separation, and a necessity for access through the severed parcel at the
    time of the severance. Siemsen, 196 Ariz. at 415, 998 P.2d at 1088.
    There is a variation on the implied way of necessity that has been recognized by division
    two of the Arizona court of appeals. E.g., Porter v. Griffith, 25 Ariz.App. 300, 543 P.2d 138
    (1975). This variation, called an implied easement (or implied easement upon severance), is
    substantially the same as the implied way of necessity, with an additional requirement that the
    “easement” have been in long, continuous, and obvious use to a degree showing permanency at the
    time of severance. Porter, 25 Ariz.App. at 302, 543 P.2d at 140; compare Bickel, 169 Ariz. at 375,
    819 P.2d at 961.
    In either case, the implied easement or way of necessity is deemed to be appurtenant to the
    land, and any subsequent owner of the severed parcel is entitled to enjoy it in the future. Tobias,
    196 Ariz. at 421, 998 P.2d at 1094; Bickel, 169 Ariz. at 375, 819 P.2d at 961. Thus, even where it
    does not presently exist (or never did) physically, it may still exist legally.
    The existence of such an implied easement or way of necessity may be an unpleasant
    surprise to the plaintiff seeking to condemn a direct route of access where, as in Bickel and
    Siemsen, the implied route is either hard to travel or is much longer than the route sought to be
    condemned. On the other hand, an implied way or easement may be advantageous to the plaintiff
    for several reasons. First, as noted above, he will not have to pay compensation to condemn it. In
    addition, because the implied easement is a property right that may be established in a quiet title
    action, the plaintiff may be entitled to recover his attorney fees through first making demand
    pursuant to the provisions of A.R.S. 12-1103.
    Lastly, where the land is enclosed by government-owned land, the implied easement or
    way of necessity may be the only viable theory for access. While the statutory right of
    condemnation, as well as a prescriptive easement, cannot be used to get access through state or
    federal land, the implied easement or way of necessity can. In Tobias, for example, the court
    noted that the plaintiffs likely were entitled to acquire an implied easement over adjacent federal
    lands, where the federal government had been the original grantor of the parcel owned by the
    plaintiffs. Tobias, 196 Ariz. at 421, 998 P.2d at 1094 (citing Kinscherff v. United States, 586 F.2d
    159, 161 (10th Cir. 1978)). Where most of our state consists of land that can be traced back to
    relatively recent federal ownership, one should always consider the possibility of establishing
    access to a landlocked parcel via an implied easement through adjacent lands that are either
    presently or previously under common ownership of the federal government. This issue is
    addressed in detail in Tom Stoops’ following article.

  3. #3

    Default Re: Easement and Landlocked Driveway Problem

    Sneaky boogers weren't they. I hope you can work this out, since everything is so verbose, it makes it hard to read. Good luck. Rod

  4. #4
    Join Date
    Sep 2008

    Default Re: Easement and Landlocked Driveway Problem

    I am a junior in college, and I happen to be taking a law class. We are studying easements and I was asked to research some state laws. After reading your article, this is how I understand it.

    The second article that you posted will not help you in any way. Each state has its own easement laws. You will need to look up the laws for the state you reside in.

    We have learned in class though that legally, the right of easement goes with the land, not the owner, so it should make no difference when you bought your property and whether or not you had the agreement with the neighbor. If it is written in your deed that you are to share the cost of maintenance, than it should be perceived that the easement is shared. This neighbor is just trying to act tough. Research the law and you'll be fine.

  5. #5
    Join Date
    Sep 2008

    Default Re: Easement and Landlocked Driveway Problem

    thank you all...sorry it was so verbose. Actually they did find an easement from 1977 and so that took care of that...our lawyer wrote a letter and he stopped he is on to a different thing with us...ugh...
    but thank you and sorry for the verbose stuff

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