On May 7, our former clients Bogdan and Jolanta Dabrowski (“Dabrowskis”) won a major victory at the Court of Appeals! Their landlocked neighbor has to pay compensation to Dabrowskis for an easement, and Dabrowskis’ choice of the route over their property was the preferred route.
The Dabrowskis are Chicago residents who purchased after a foreclosure a second home in Cave Creek on a five-acre lot (“Lot A”). At that time the Dabrowskis’ neighbor David Bartlett (“Bartlett”) owned a vacant five-acre lot (“Lot B”). Bartlett later wanted to build a new home on Lot B. The location and size of the building envelope for the new home on Lot B would be limited by the amount of disturbance of the natural desert by any road to the new home.
Bartlett had originally owned all ten acres comprised of both the five-acre Lot A and the five-acre Lot B. Bartlett sold Lot A to a third party who constructed a home on Lot A, but lost the home to foreclosure. The Dabrowskis then bought this home on Lot A. At the time Bartlett sold Lot A, Bartlett had legal access for Lot B over Anderson Road. Bartlett later became “landlocked” when he lost that legal access over Anderson Road because of the construction of a new home on Anderson Road.
Bartlett filed a lawsuit for an access easement over the Dabrowskis’ Lot A by either an implied way of necessity or by private condemnation. Note: An implied way of necessity does not require compensation; private condemnation requires compensation and is similar to public condemnation, e.g., the Arizona Department of Transportation paying compensation to condemn private land for a freeway.
B. Court of Appeals Ruling dated May 7, 2019
In a 21-page opinion the Court of Appeals initially discussed the distinction between an access easement by an implied way of necessity and an access easement by private condemnation.
- Implied Way of Necessity
The Court of Appeals ruled that an implied way of necessity for Lot B over Lot A would be available if, at the time of the splitting of the ten acres into Lot A and Lot B, there was no alternative legal access available for Lot B. The Court of Appeals, however, denied Bartlett’s claim for an implied way of necessity over Lot A because Bartlett had alternative legal access over Anderson Road at the time that Bartlett split the ten acres into Lot A and Lot B.
- Private Condemnation
The Court of Appeals ruled that Bartlett had a right of private condemnation for an access easement over Lot A. The Court of Appeals then ruled that this access easement over Lot A would not be over the route selected by Bartlett, but would be over a reasonable route selected by the Dabrowskis. Finally, the Court of Appeals required Bartlett to pay the Dabrowskis compensation for this access easement, plus attorneys’ fees and costs.
At the time of splitting one lot into two lots, an implied way of necessity (which does not require compensation) is available if one lot is “landlocked,” i.e., without any legal access. An implied way of necessity is not available if that one lot had legal access at the time of the split, but that lot later became landlocked. Only private condemnation, with compensation, is available for access over a reasonable location on the other lot chosen by the other lot owner.