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.
Community Well Agreement
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.
Last Updated on January 22, 2009 by Chuck Marunde
I am one of eight residents on a community well, six live on one street and two live on the next street adjacent to us.The well is in the road at the end of the circle where the six live.A new city water line has been installed which will supply the six.The well is fifty years old and the past residents made all agreements on a handshake,so no by-laws ,contracts ,or legal documents have been established.Everyone contributed a set amount to pay fees with extra monies going to a well fund in case of repairs.Question is can leaving members legally recoup a portion of the well fund upon forfeiting rights and terminating ownership since contributed money was not used?
Clay, you don’t have a contract or written agreement that specifically addresses whether you can recoup a portion of the well fund upon forfeiting rights, therefore you cannot, unless you can come up with another right under the law to do that. You might claim a right in equity or under the common law, but you’re going to pay more for attorney’s fees than you would recover.
Hey I have got one for you. We live in WA state. We purchased a home on a shared well before we realized what they were all about and how they can become a nightmare overnight.
Anyways, We took over management on a group b well and got it up to code. We last year had to by our county have to give a well users agreement. It doesn’t convey ownership of the well just the water. We own the well outright as of FEB of this year. We turned it into an LLC and now the neighbors are mad. They feel like they shouldn’t have to pay for water and are stating that the well agreement states that all the neighbors are well owners. Which they are not. They have water rights as the document states. We are the only ones on the well deed. So because of this weird logic they think that the well user agreement HAS to appoint someone as a manager of the well. Which I have been doing since 2019. Do we have to have this in a well user agreement even though we are the owners and managers?? Also they are threatening to sue if we don’t give up our share of the well we own by their ideas by a quiet claim and then kick us off the well? Can they even legally do this? I am looking for a good attorney but where I am located many don’t understand these well users agreements and don’t understand the laws governing them especially when someone owns the well outright. Also, can I just hand this well over the our county to take over if they threatened to sue us???? I will never buy a property with a shared well ever again. Especially in WA state. Or can we just sell our home and move??? I don’t want to pay $38000 for a well pump when we don’t plan on living here much longer because of all this?? They would basically be devaluing our home on purpose so we would not be able to sell unless we drilled our own well.. How can people be allowed to bully people like this??
Kat, you have a major legal nightmare on your hands. This area of the law is primarily governed by contract law, so agreements are paramount in any community well system. The common law and case precedent will step in where the party’s agreement is lacking or non-existant, but this is a can of worms, because judges will want to know all the history, all the facts, all the representations made for all the buyers, and so on. You need a real estate attorney to spend hours and days unpacking this mess, and then you’ve got to face the possibility of a major lawsuit with various people hiring their own attorneys. To say the obvious for my readers, any shared well arrangement absolutely must be in writing and must spell out all the rights and responsibilities of all parties. This is not the kind of assignment your average general practitioner attorney can handle. It takes a specialist in real estate. I practiced real estate law for 20 years, and I can tell you most attorneys were not equipped to draft this kind of well maintenance agreement.
We live in WA State. When we bought our property (#1), the well on it was shared with a next door neighbor (#2). The seller of our property built across the way (#3). He asked if he could tap into the well if he paid for maintenance and we paid the electric. Not knowing anything about it, and wishing to be good neighbors to the folks who’d sold us our home, we agreed. In the midst of all the paperwork for buying the house, we signed a well agreement saying we (#1) shared the well with #2. Decades down the road, property owner #2 built his own well and disconnected from the system. We then discovered that the well agreement we signed never included property #3, and that we’d been misled. It was only a verbal agreement. We’d now like to simplify the matter, and would like each of the three homes to supply its own water. #2 has already done so. #3 refuses. Are we obligated to supply water to his home in perpetuity? When he sells, are we obligated to supply to the new owner of #3? When we sell, is the new owner #1 obligated to supply water to home #3. We have paid many times the amount #1 has. It was a bad deal from the beginning. But we didn’t realize that property #3 had no written agreement w/ us. Do we have any legal ground to stand on?
Doug, your question raises many factual and legal questions, and to say the obvious, you’re in a very complicated legal web. It’s not easy to get out of a spider web. An attorney needs to review all documents in chronological order, the substance of all communications, written and verbal, and the representations made. That’s about all I can say, because all that must be done in order to properly apply the applicable law. You’ve got a nightmare scenario on your hands though. You need an attorney, and not just any general practitioner. You need an experienced real estate attorney.
I have a home on property that has a community well agreement that is recorded, and part of the title. Recently I asked for copies of the bank statement where community wells funds are deposited and was told by the water manager they have no requirement to provide anything. According to the well agreement – each party to the agreement shall be provided a copy of the monthly bank statement. I also learned the water manager never set up a separate banking account for the well – separated from their personal banking account. Apparently the manager has been co-mingling the funds. My concern is this person is using the funds for their personal use. My suspicion has grown with the refusal to provide documents I have a right to. I also asked for copy of the monthly electric bill so I would have better idea how much electricity is used . Again the Manger refuses to provide anything, The Manger self elected themselves before I brought my property. They are now threatening not to turn over the well maintenance and payment records. Just this evening I noticed this person is getting ready to install another water tank not for the community well but stashed inside their garage (out of sight) for their personal use (about a 2000 gal tank). Concern is this person is going to draw the well down and could possibly cross contaminate the water system. What can I do? What is my recourse?
Vicki, you need to hire an attorney. Obviously, your community well manager has no adult supervision in his household. This is a very bad situation, and based on what you shared, it sounds like this man won’t listen to reason and is going to do whatever he wants to do. In 20 years of law practice, I recognized that people like that tend to suffer from narcissistic personality disorder . . . just like a lot of our politicians do. Such people don’t listen. They do whatever they want with no concern for anyone else at all. Hire an attorney.
Love your articles. Don’t ever stop.
Thank you very much Dr. Toro.
Hello. I have a shared well on my property with power under my name and a well agreement between 3 other properties. A fourth property at some point in the past tapped into the line of the last legal property and recently called the Sheriff on us for turning the line off. The sheriff deputy said whether he was legally joined or not we had to give him notice. The property illegally joined does not have a permanent structure just an rv that the owner rents.
Jason, this is a serious matter with lots of potentially very negative consequences for everyone. Potential lawsuits, potential judgments, lots of stress. You need an attorney in your jurisdiction.
We are looking at a property that has water from a well owned by the seller that provides water to 5 houses. The owner is retaining all the water rights and it is simply an agreement to provide the water for a minimal cost…But the agreement can be cancelled with 90 days notice. This seems way to risky to me but the seller says it shows mistrust and does not want a proper shared well agreement. Should we walk away or are we being unreasonable?
Sorry didn’t see how to ask a new question.
Scott,
You cannot cut someone’s water off for non-payment of shared well maintenance expenses, but you can pursue them in a Superior Court. You have a written easement and water covenant, and while there may not be language that apportions expenses of maintenance among the users, there is a common law obligation to pay for a reasonable pro-rata share, and a judge would agree. If there is an attorney’s fee provision in your covenants, you can also recover your attorney’s fees.
Have an interesting shared well question…
How can I terminate water services to a neighbor who wont pay?
Well located on my property in Yakima County. Easement and water covenant is recorded. Only an oral agreement in place for the expenses.
I have cover all infrastructure, repair, and power cost. Neighbors promise to reimburse the shared expenses, but never make payment. They have accrued $6100 in back fees and failed to share the $30k infrastructure expense.
Welcome your thoughts-
Scott
I live in Ohio and am part of a 47 home comminity well and was wondering what are the rights of the the comminity well to shut off water for poeple who are behind in payment. is there a formal procces for the leaders of the well to go though before shuting off the water?
thanks
Keith
Editor: Email sent to Keith with personalized response.
hello Chuck, i would like to know if you could advise me as to how to Approach a community well issue i have. i have live on 5 acers in so calif for 27 years. when i bought the property the neighbor that owned the property the well is on informed me the well located on his land was a community well that serviced 16 parcels. sence that time everyone have abandoned use and connection to the well except me. I have maintained and used the well for more that 20 years exclusively. the property has changed owner two time sence then. the new owner has removed the fence and now i fear he will denie me access to the well as i need to repair it. i have tryed to research what i believe to be an easment with no luck. any assistance would be appreciated thank you in advanced Lon
Lon, that’s a tough issue, and believe it or not the State of Washington has many community well systems as you describe yours. I recommend talking to a real estate attorney, but I’ll share a couple of thoughts since I was an attorney for 20 years. A community well system should have a well maintenance agreement in writing. That document will answer most of your questions, because it will spell out precisely what the rights and obligations are for every party, including the burdened property and the benefitted property. But if there is no written agreement, you will have to fall back on the original intent, the practice for the past 27 years, and any other correspondence or documents to support your proof that there is an agreement and that you have the right to continue to use the water. I don’t know about California, but in Washington you can also prove an easement by prescriptive use for 10 years or more, and there are other legal claims for water rights that can be made. Hope this helps, but again you probably should talk with a real estate attorney familiar with these issues. Chuck Marunde
Lori, you have some rights even without a written agreement, a little like the comparable rights for adverse possession or easement by prescription, but they are more complicated in the area of water rights as in your case. You’ll need a real estate attorney to unwind the facts and your legal rights in your jurisdiction.