An expertly written shared well agreement is custom tailored to fit each unique situation. By clearly defining the rights and responsibilities of each household there is a reduction in disputes and an increase in peace of mind. Boilerplate well share agreements found online cannot provide the accuracy needed to make sure things go smoothly. In fact, generic agreements can create major problems.
Over the years, I have spoken to literally hundreds of Arizonians with some type of dispute regarding a shared well and a common variable is a poorly written shared well agreement.
Our well share agreements add details about things like how water can be used and how much. For example, it will state, “The Well water shall only be used for bona fide domestic purposes. The water shall not be used for watering crops, orchards, livestock, or extensive gardening. Additionally, the water cannot be sold or used for any commercial activities.”
Because wells do not produce an infinite supply of water, overuse by one family may leave the other homeowners without sufficient water. Many wells simply cannot produce enough water for all homeowners to have extensive gardens, pools and water horses. This will put additional strain on the well system and the other users will be stuck with a higher electricity bill and low water pressure. As such, we write provisions into the agreement to prevent this type of behavior as much as possible.
Every situation is different, every property is different, every well is different, and this is why we create custom agreements for each client. In addition to providing advice on the general issues we also provide advice on more nuanced issues. For instance;
- Must each property have its own water flow meter?
- Should property owners not using the well, (their parcel is vacant land), still pay for costs and repairs even when not drawing water from the well?
- What if a homeowner no longer wants to draw water from the well? Must they continue to pay for maintenance and repairs?
- What about swimming pools? Horses? Orchards? Gardens?
- Is there a buy-in for ‘late comers’?
benefits to the well owner- “grantor”
A well share agreement benefits a well owner by giving them enforceable rights against the water recipients. For example, if the Grantees to the agreement do not pay their share of well maintenance, repairs, electricity, etc. they can simply turn off their water.
benefits to the water recipients- “grantees”
Shared well agreements provide Grantees–those receiving the water–a legal right to draw water from the well. The Agreement is the only assurance Grantees have with a legal right provided in the agreement. Without a written shared well agreement, a well owner (Grantor) could deny access to a Grantee. If your water comes from a shared well that is not located on your property, then you must take steps to protect your legal right to the water.
A Grantee might think, “I don’t need a formal shared well agreement because I’m friendly with my neighbors and we all get along.” But what if those friendly neighbors move? Will you still have a legal right to the water? Because without a shared well agreement, the well owner has no legal obligation to share the well water with you!
All groundwater withdraws in Arizona must come from a water well that was permitted by the Arizona Department of Water Resources. Owning the land free and clear, or owning an undivided interest in the land or having an easement right does not give a land owner the right to extract groundwater. The right to extract groundwater only from a permitted well.
Gather & Verify the Information
The first step to drafting an excellent shared well agreement is to verify that the information used is accurate and complete. Using outdated or inaccurate information is like a great chef trying to make a crème brulée with the wrong or expired ingredients. No matter how great the recipe, if the right ingredients are not used then it doesn’t matter, it still won’t taste good.
An assessor’s parcel number is one example of where we need to closely check our information for accuracy. A parcel number—sometimes abbreviated APN—is a unique descriptor used by each county in Arizona to identify and assess real property. The parcel number includes information about the ownership, characteristics, and valuation of each piece of land. While each parcel can only have one parcel number at a time, the parcel numbers can change. New parcel numbers are assigned each time a property is split, merged, or subdivided. Verifying the correct parcel number is just one example of how we thoroughly check the information used in our well share agreements.
Verify Ownership Records With the ADWR
Even though the Arizona Department of Water Resources (ADWR) does not oversee Shared Well Agreements, they still require that the Well ownership information to be accurate. Well ownership information can become outdated if a well property is sold but the ownership information is not updated. Click HERE to watch a video that shows how to check the ADWR’s website to see who is the registered well owner.
Simply purchasing a property and recording the deed with the county recorder does not notify ADWR that the Well ownership has been transferred. A new owner must take the overt steps of updating the Well in their name. The records are updated by submitting the necessary information and paying a small fee.
A PERSON TO WHOM A WELL IS REGISTERED MUST NOTIFY THE ARIZONA DEPARTMENT OF WATER RESOURCES (ADWR) OF A CHANGE IN OWNERSHIP OF THE WELL AND THE NEW OWNER MUST FURNISH INFORMATION AS REQUIRED BY ADWR TO KEEP WELL REGISTRATION RECORDS CURRENT AND ACCURATE.
A.R.S. 45-593(C)
Record the Agreement
Once the Agreement has been approved and signed by all Parties, it is recorded with the county. In large part it is recorded so that someone cannot later challenge the veracity or accuracy of the Agreement.
Once the Shared Well Agreement is recorded with the county, a copy is provided to the ADWR. They will scan the recorded agreement and save it in the Well’s permanent file. Even though the ADWR does not get involved in Shared Well Agreements it is still a best practice to send them a copy of the recorded agreements.
If you need help from an experienced water law attorney, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.
* The information provided is informational only, does not constitute legal advice, and will not create an attorney-client or attorney-prospective client relationship. Additionally, the Dunaway Law Group, limits its practice to the states of Arizona and New York.