Legal Question in Real Estate Law in Utah

Re: How to obtain easment right of way in Utah

An easement by prescription is also called an easement by necessity, meaning that the easement is required to obtain access to another parcel of land. The claimant must be able to show that the property cannot be accessed through any other reasonable route, and that the owners of the property did not create the need for the easement. If the burdened land (i.e. the land over which the easement runs) owner contests, you may file a lawsuit in district court seeking declaration of the easement. This is a technical process and you must become educated about the technical elements of filing the lawsuit as well as the legal requirements to prove the prescriptive easement.

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Re: How to obtain easment right of way in Utah

There is no preliminary process per se that is required for obtaining an easement by prescription, provided that all of the requirements of such an easement have been met. These requirements are as follows: (1) continuous, uninterrupted use of the property for the purpose desired for the statutory period, (2) such use is adverse to the rights of the owner of such property, and without such owner's consent, and (3) such use is visible, open and notorious. Let me address each point separately.

(1) In Utah, the statutory period for adverse possession is seven years. Therefore, you must have been using the parcel of land for its desired easement use for that amount of time continuously and uninterrupted.

(2) Generally, any use of someone else's land without right is adverse to their ownership. Therefore, if you have been using the owner's land as a right of way, that use is in contravention of the owner's title, and therefore adverse to his/her rights.

(3) The purpose of the "open and notorious" requirement is to avoid deception. For example, if every night at 3AM, while the owner slept, you used his part of his property for a right of way once a month, such use would not be "open and notorious". However, if you did it in every evening when the owner is home and can see you doing it, then such use would be "open and notorious". However, "open and notorious" use does not apply if the owner has given his/her consent to such use.

I hope that this information helps you. Please be advised that I am an admitted attorney in NY and NJ, but not in Utah. I can do statutory research for you if you like, but I would recommend that, if you want to proceed in obtaining such an easement, you retain a lawyer in your area, who will be admitted to practice law in the state of Utah, and will be familiar with local laws.

Best regards,

John Galluccio