Real Estate Q & A: Can a landlocked property owner gain access?

Adam D. Martinez | Chairman of Real Estate Litigation Department

Question:  After my parents died, I inherited 40 acres of land in Northern Arizona. I recently had the property surveyed and discovered that that there is no access to the property without crossing over a neighboring property. The neighboring property has a locked gate preventing any access. I have made several offers to the neighboring property owner regarding an easement or partial purchase of her property, but she has refused. Is there anything else I can do?

Answer:  Yes. A landlocked owner has several possible options. If the seller of the property sold a portion of its property to your parents without a formal access roadway, then Arizona law implies in the sale of the property an easement across the seller’s remaining property for access (and utilities). If the seller refuses, you can ask the court to enter an order compelling the seller to grant an easement. This is because Arizona law generally presumes that all transfers of real estate include by implication whatever is necessary to use the real estate.

While less common, the owner of a landlocked property may be able to file a “private condemnation” lawsuit, where the landlocked owner can ask the court for just enough of the neighboring property to build and maintain a roadway in order to access the property and for utilities. The landlocked owner must prove that there is no sufficient alternative access to the property. As in public condemnation, private condemnation requires compensation to the owner of the property being taken.

Adam Martinez is the Chairman of the Real Estate Litigation Department at Rose Law Group pc, and can be reached at amartinez@roselawgroup.com.

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