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Chuck, I am a real estate agent in Yakima, WA. I am trying to find out more information about Community Well Agreements. I recently had a client ask me a question as to whether or not a neighboring property can just kick him off of the community well that he is using? In order to better serve my client I am trying to research as much information in regards to this issue. I would appreciate any and all information that you could provide.
Here’s the scenario:
Client purchased a property that has a community well agreement with an adjacent property. Well is located on the adjacent property. Two months after purchase, owner of adjacent property contacted client and informed him that he was going to “kick him off”the community well.
Question: Can the adjacent owner legally do that? Can the well agreement be negated in anyway? How do I assist my client with this matter?
Thank You, Eric
Answer: The short answer is no. Here’s a summary from FreeRealEstateLaw.com on community wells:
Many small subdivisions share a well that is located on one of the lots and that requires an agreement between the property owners on how the costs of maintenance will be shared, and who has the obligation and right to maintain the well and water distribution system.
This is an area ripe with disputes between neighbors. I have handled a number of these disputes as an attorney, and there is no doubt that if there had been a solid agreement covering all the major and even minor issues that can and do come up, many of these disputes would never have arisen, or they would never have gone so far.
The issues to be covered in a Well and Maintenance Agreement, which typically requires an easement on the burdened property for the well itself and an easement across lots for the pipes, will be unique to some degree because of the unique characteristics of the property, the needs, and want everyone wants to do. Some will want more water than others as when someone intends to irrigate acreage. The parties need to figure out an equitable approach to dividing the maintenance costs.
Here is a good example of an agreement I drafted and have used many times, although the specifics often change.
A community well agreement, if done right, will create a legal and permanent easement across the effected properties, and all the rights and responsibilities of all parties will be clearly enunciated. A well easement is just as legally binding upon the burdened land as a legal driveway easement. Check your well agreement or the easement agreements that are recorded, and you should find all the language you need, assuming it was done correctly.
By the way, for the do-it-yourselfer who says, “We don’t need a real estate attorney. We can make our own agreement with some toilet paper,” you can imagine how disastrous the result could be. You might end up with no enforceable easement, in which case a neighbor might have the legal, but immoral, right to evict you.
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