Payment of Maintenance Costs Due to Increased Use of an Easement

Question: We have owned a home in Casa Grande for 12 years. We have regularly maintained and have a recorded access easement (“Easement”) for a 30’ wide dirt road over our neighbor’s land to the main highway. A Phoenix developer has purchased 40 acres near us for a 20-home subdivision. The best access for these 20 homes to the main highway is probably over our Easement. Will this developer, and the subsequent 20 homeowners, be allowed to use our Easement for access to the main highway? If so, who pays for the increased cost of maintaining the Easement because of the increased use of the Easement by the 20 homeowners?

Answer: The terms of the Easement will control the answer to both of your questions. If the Easement is “exclusive,” i.e., can be used only by you, the Phoenix developer should have to find access to the main highway other than over your Easement. If the Easement is not an exclusive easement, the Phoenix developer will probably be able to negotiate and pay your neighbor for an additional easement over the 30’ dirt road to the main highway. The terms of this additional easement should require the Phoenix developer to pay for the increased costs for maintenance of the 30’ dirt road.  Finally, if your neighbor refuses to give the developer an easement for access to the 20 homes over the dirt road, and if there is no other reasonable access to the main highway, the Phoenix developer should be able to get access to the main highway over the Easement by private condemnation, with payment of money to your neighbor.

Note: An owner of real property generally cannot be “landlocked.” Therefore, the owner generally has the right of private condemnation for access, with payment of money to the landowner, similar to ADOT having the right of public condemnation for a freeway, with payment of money to the landowner.

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