The agent is listing a property on a hillside which a driveway runs through to access the house above the subject property. There is no written or recorded easement noted in the title commitment. Because there is no recorded easement, the buyer insists that the driveway is “illegal” and has urged the agent to eliminate it.
Is the agent licensed to address the prescriptive easement and seek its removal?
Article 26 of the Arizona Constitution allows licensees to represent a party in a real estate transaction. A real estate licensee may not, without further licensure, practice law. Based on the facts presented, the driveway may constitute a prescriptive easement through the subject property. Attempting to eliminate the easement would constitute the practice of law. The agent is therefore not properly licensed to address the situation. Rather, the agent should refer the buyer to independent legal counsel.