PRIVATE WAY OF NECESSITY – ARIZONA

Private Way of Necessity – Explanation

In Arizona, a person may “condemn” a “private way of necessity” to obtain access to/from a landlocked parcel of land.  This must be done by way of a lawsuit (also called an “action).  A private way of necessity is a court-ordered easement giving a person legal access to landlocked land.   The legal right is codified in Arizona Revised Statutes (“ARS”) Section 12-1202, which states:

12-1202. Right to private way of necessity; limitation

A. An owner of or a person entitled to the beneficial use of land, mines or mining claims and structures thereon, which is so situated with respect to the land of another that it is necessary for its proper use and enjoyment to have and maintain a private way of necessity over, across, through, and on the premises, may condemn and take lands of another, sufficient in area for the construction and maintenance of the private way of necessity.

B. If the condemnation is upon, over, or affects the range lands of another, the area condemned shall be strictly defined, and livestock driven upon or over the private way shall be accompanied by and under the control of sufficient drivers or herders to confine the livestock to the condemned area, and the livestock shall be so confined to that area and kept moving directly across the property condemned until they have been completely removed from the condemned area.

A “private way of necessity” is defined as:

12-1201. Private way of necessity defined

“Private way of necessity” as used in this article means right of way on, over, across, or through the land of another for means of ingress and egress, and the construction and maintenance thereon of roads, overhead transmission lines, pole lines, power lines, canals, ditches, flumes, shafts, tunnels, pipe lines, drains, including, but not limited to, embankments, diversion dams, dikes, ditches, canals, flumes and levees for the purpose of removing water from land or preventing accumulation of water on land, and tramways, including, but not limited to, aerial tramways and industrial railroads, for mining, milling, lumbering, agricultural, domestic or sanitary purposes.

Proof Needed for Private Way of Necessity

To prevail in a Private Way of Necessity lawsuit, you must be able to prove that you are a person entitled to the beneficial use of land, mines, or mining claims and structures thereon and that your land is so situated with respect to the land of another that it is necessary for its proper use and enjoyment to have and maintain a private way of necessity over, across, through, and on the premises of the land of another.  If there is another means of access to your land, you likely will not prevail.

If you prevail, you will have to compensate the person whose land has been taken for the fair market value of the land taken.

How To Obtain Private Way of Necessity

To begin the Private Way of Necessity process in Arizona, the property owner or their attorney must file a lawsuit in the county where the property is located. The lawsuit must name all parties who have an interest in both properties, such as previous owners, mortgage holders, and any other parties who may have a claim to the property.

Once the lawsuit is filed, you must notify all parties who have an interest in the property and give them an opportunity to respond. If any of the parties fail to respond or contest the lawsuit, the court may enter a default judgment in favor of the property owner.

If parties contest the lawsuit, the court will hold a trial to determine whether all the necessary elements for a private way of necessity have been proven.  During the trial, both sides will present evidence and arguments to support their claims to the property. The court will then make a decision based on the evidence presented and issue a judgment.

A Private Way of Necessity lawsuit is not something that can be done by filling out a few forms. Private Way of Necessity lawsuits in Yavapai County must be filed in the Yavapai County Superior Court  It is much more complicated than filling out a few forms. It requires the skill, education, training, and experience of a qualified attorney skilled in both real estate law and litigation. A Private Way of Necessity action is a lawsuit.  Thus, all of the factors applicable to lawsuits, and all of the complexities, also apply to Private Way of Necessity actions.

Preparation

If you want to win a Private Way of Necessity lawsuit, you should be prepared with:

1) A Survey of the land at issue;

2) Certified copies of aerial imagery, going back decades;

3) A precise legal description, prepared by an Arizona-licensed Surveyor, of the land at issue;

4) A Chain of Title Report showing who has owned the land all the way back to when Arizona because a Territory;

5) A “Litigation Guaranty” showing who needs to be included in the Private Way lawsuit;

6) Evidence that is admissible in Arizona courts such as photographs that can be authenticated, certified copies of documents recorded in the County Recorder’s office, audio records that can be authenticated; letters and other documents that can be authenticated; and,

7) Proof that a Quit Claim Deed, a five-dollar ($5.00) bill, and a written demand to sign and return the Quit Claim Deed were served on the potential defendants by a licensed Arizona Process Server.

Legal Fees

Legal fees for a Private Way of Necessity lawsuit depend on a number of factors including: 1) whether the lawsuit is contested or uncontested; 2) the number of plaintiffs; 3) the number of defendants; 4) whether all defendants can be located for personal service of process; 5) whether all defendants live in Arizona, the United States of America or elsewhere; 6) and, what issues appear in the “Litigation Guaranty.”

Litigation Guaranty

A “Litigation Guaranty” is a specific type of title report from an Arizona title company showing the condition of the title and who is claiming an interest in the land. Generally, a “Litigation Guaranty” is necessary to undertake representation in a Private Way lawsuit.

The cost of a “Litigation Guaranty” and service of process are in addition to legal fees.  Sometimes a new survey is required, which is an additional expense not included in the legal fees.

We have represented numerous parties in Private Way lawsuits, both as a plaintiff and as a defendant.  A successful Private Way lawsuit begins with a proper investigation.  A skilled litigator can focus that investigation on the things which will increase the chance of success.

Site Inspection

As part of a proper Private Way of Necessity investigation, the attorney should physically inspect the property.  Yes, that means getting out of the office and into the field.  A field inspection reveals things that cannot be discerned from looking at documents or from interrogating a client about the property.

Aerial Imagery

Another thing that should be done is to determine whether there are historical photographs of the property.  Historical photographs reveal things like roads, bike paths, watercourses, and other things affecting the property which may or may not still be present during a field inspection.  In one case, we obtained photographs from the 1930s and had a U.S. Forest Service expert review them.  He determined, from a stereoscopic inspection of the photographs, that vegetation in the photographs revealed the non-existence of a roadway claimed to be present as far back as the 1920s.

Attorneys’ Fees

Sometimes, the issue of attorney’s fees determines whether a person is able to successfully pursue a Private Way of Necessity action. In Arizona, a person who is successful in a Private Way action may receive an award of attorney’s fees against the losing party if certain prerequisites are met.  Those prerequisites are found in Arizona Revised Statutes, Section 12-1103B.

Proper Tender

In order to prove that a quit claim deed was properly tendered, the tender should be made properly. Evidentiary problems arise if a tender is not properly made. An experienced litigation attorney should be consulted to avoid evidentiary problems.

Relevant Statutes

In Arizona, a private way of necessity action is subject to certain statutory requirements. The Arizona statutes authorizing a Private Way of Necessity lawsuit may be found in Title 12, Chapter 8, Article 1.

A Private Way of Necessity lawsuit is not something that is usually completed in a short period of time. As with most lawsuits, the process takes time. Thus, if a private way of necessity action is necessary to resolve issues relating to the title or ownership of an interest in land, one should expect it to take some time.

Chain of Title

Before a Private Way of Necessity action is started there should be a thorough search of the land records. The search often involves what is known as a “chain of title” which is a report showing each sequence in the history of the land ownership. Sometimes, a survey by a licensed/registered land surveyor is necessary. Sometimes multiple surveys are involved, especially when the dispute involves the location of a property or fence line.

Maximize Your Chance of Success

There are many procedures and techniques which can maximize the chance of success. Usually, the sooner these techniques are employed the better the chance of success. An experienced Private Way attorney should be consulted as early as possible, to maximize the chance of success.  Contact us to schedule a consultation.