Note: The DearEsq free 'ask a lawyer' site is offered as a free informational service to the public and is not intended as legal advice. Laws vary from state-to-state, and in addition every situation is unique, and relevant facts may not be known. The answer to the question posed below may not apply to in your state or to your situation. For legal advice in your state and your situation you should consult with an attorney in your state who is familiar with the rules and laws in your state.
“An easement through an unincorporated HOA community in Yavapai County, AZ allows access through the community to landlocked abutting Property. Easement metes and bounds describe a route somewhat different from existing roads. Note on easement states no survey was done. Existing roads have been used for access to abutting Property for years. Property owner is now using roads to access Property during construction on the Property. Owner has unfettered access. Adherence to the described easement would require demo of some existing construction and construction of new roads. What are respective rights of community and easement grantee (Property owner)? For example, does the law allow the Property owner unrestricted rights to treat the route of his described easement however he deems necessary irrespective of the current use of that property? I want to convince the HOA Board to hire a lawyer to handle this but there is resistance. I don’t want to play lawyer but need convincing arguments.”If you want to convince your board, you’re going to have to consult with a lawyer in your area and get an idea of your chances. The best answer I can give based on your description is “it depends.”
Question: First, you note that the other parcel is landlocked. Depending on how it got that way, the landlocked parcel may have what is known as an “easement by necessity,” which would give the owner of the landlocked parcel fairly broad rights, within reason. This isn’t the case with all landlocked parcels, however.Depending on how many years the current use has been going on (as well as some other factors), there may or may not have been rights gained by prescription. This will depend on the specific facts of the situation, as well as the law in your state.
Finally, the precise wording of the easement document is likely to have an effect.
Answer:
These are just the most obvious factors. All of these, and possibly more, would have to be analyzed by an attorney to give you an idea of your relative rights and responsibilities in this situation.
