As a young up and coming realtor, you just found the perfect home for your clients. It is located on a 3.3 acre parcel nestled at the end of a dirt road that serves 5 other homes. Each of the 6 homes along the road has an express 30 foot wide easement for ingress and egress. Your clients love the home, but are a concerned about the easement. Before they decide to buy, they want to know who is responsible for the cost of repairs and maintenance of the road.
As with many legal questions, the answer is: “it depends.” First, is there a recorded Road Maintenance and Repair Agreement? If there is and it was drafted correctly, you are in luck because it will spell out your clients’ and the other easement holders’ ongoing rights and obligations regarding the maintenance of the road.
Unfortunately you discover that there is no such agreement. What next? Once again, the answer is: “it depends.” Under the doctrine of equitable contribution as applied to easements/roadways in the case of Freeman v. Sorchych, 245 P.3d 927, 226 Ariz. 242 (Ariz. App. 2011) the Court found that parties who share a road each have an obligation to contribute “to the necessary repair and maintenance of an easement….” The court also found that the contribution obligation did not apply to “improvements” of the road.
What constitutes necessary repair and maintenance? A recent Arizona opinion stated that “”Maintaining” an easement involves general repair and upkeep, and caring for the appearance.” Activities such as filling holes with dirt from the surrounding area, grading the road and other actions that keep the roadway in good repair, but do not alter or enhance the value of the road, will require contribution by your clients. The amount and character of the contribution will depend on several factors such as: each party’s proportionate use of the road, the benefits derived from the use, whether each party received proper notice and a reasonable opportunity to participate in the decisions regarding repairs and maintenance, whether the completed work was reasonable and necessary, whether the repairs and maintenance were performed adequately, properly, and at a reasonable price, the value of any other contributions (monetary or in kind) by the parties to repairs and maintenance; and other relevant factors. The review of these factors is usually done retrospectively by a court when resolving a conflict between the easement holders.
Improvements to an easement don’t fall within the doctrine of equitable contribution. The party or parties who undertake improvements are responsible to pay for them. So what is an “improvement” to an easement? By definition, an improvement enhances the value or quality of the easement or makes it more useful. Paving a road with asphalt, concrete or other material has consistently been found to “improve” a roadway. Again, the determination of whether something is an improvement usually involves judicial review.
Your clients don’t like the uncertainty regarding any obligations they may have under the Freeman case’s Doctrine of Equitable Contribution and are about to walk. Thankfully, you were able to get the other easement holders to agree to the terms of a Road Maintenance and Repair Agreement which had been expertly drafted by the attorneys at Monroe McDonough Brent & Morales, PLLC. Your clients are thrilled, sign the Agreement and close the purchase! Satisfied, you go home, open a bottle of wine and put on John Denver’s album “Poems, Prayers and Promises” to celebrate!