Clint Dunaway, Author at Dunaway Law Group, PLC Page 2 of 19

Assessment Lien Well

It is common for well share agreements to have a provision whereby a lien can be levied under ARS 33-1256 and ARS 33-1257 for unpaid dues.

steps to recording an assessment lien

Pre-lien Letter. At least thirty (30) days prior to recording an assessment lien on a member’s property (the member’s “separate interest”) for delinquent assessments, late charges, interest, collection fees and costs owed by that member to the association, the association is required to provide the member with a pre-lien letter via certified mail.
Notice of Delinquent Assessment. (Notice of Intent to Record an Assessment Lien).
2.1- Itemized Statement of Amounts Owed– The assessment lien must state the amount of the delinquent assessments and any other sums imposed, i.e., late fees, interest, attorneys’ fees, collection costs, etc. The itemized statement of the amounts which were provided to the owner in the pre-lien letter must also be recorded together with an assessment lien.
2.2- Legal Description of the Member’s Property– The assessment lien must include a legal description of the member’s party against which the delinquent assessment and other sums are levied.
2.3- Name of the Member– The assessment lien must include the name of the record owner of the separate interest against which the assessment lien is imposed.
2.4- Signed By Designated Person(s)– The assessment lien must be notarized and signed by the person designated in the well share agreement–well manager–or by the well management board, or if no one is designated, by the well manager.
2.5- Recorded With the County– The assessment lien must be recorded in the county in which the property is located.
2.6- Mailing the Lien To All Parties– Once recorded, a copy of the recorded assessment lien must be mailed by certified mail to every person whose name is on the well share agreement. The recorded notice must no be mailed later than ten (10) calendar days after recordation.

Pitfalls of Wrongfully Recording a Lien

A.R.S. § 33-420(A) states:

A. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is liable to the owner or beneficial title holder of the real property for the sum of not less than five thousand dollars, or for treble the actual damages caused by the recording, whichever is greater, and reasonable attorney fees and costs of the action.
A.R.S. 33-420(A)

B. The owner or beneficial title holder of the real property may bring an action pursuant to this section in the superior court in the county in which the real property is located for such relief as is required to immediately clear title to the real property as provided for in the rules of procedure for special actions. This special action may be brought based on the ground that the lien is forged, groundless, contains a material misstatement or false claim or is otherwise invalid. The owner or beneficial title holder may bring a separate special action to clear title to the real property or join such action with an action for damages as described in this section. In either case, the owner or beneficial title holder may recover reasonable attorney fees and costs of the action if he prevails.
A.R.S. 33-420(B)

C. A person who is named in a document which purports to create an interest in, or a lien or encumbrance against, real property and who knows that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid shall be liable to the owner or title holder for the sum of not less than one thousand dollars, or for treble actual damages, whichever is greater, and reasonable attorney fees and costs as provided in this section, if he willfully refuses to release or correct such document of record within twenty days from the date of a written request from the owner or beneficial title holder of the real property.
A.R.S. 33-420(C)

D. A document purporting to create an interest in, or a lien or encumbrance against, real property not authorized by statute, judgment or other specific legal authority is presumed to be groundless and invalid.
A.R.S. 33-420(D)

E. A person purporting to claim an interest in, or a lien or encumbrance against, real property, who causes a document asserting such claim to be recorded in the office of the county recorder, knowing or having reason to know that the document is forged, groundless, contains a material misstatement or false claim or is otherwise invalid is guilty of a class 1 misdemeanor.
A.R.S. 33-420(E)

If you are an Arizona well manager looking to enforce a shared well agreement, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

The Dunaway Law Group provides this information as a service to clients and other friends for educational purposes only. It should not be construed or relied on as legal advice and does not create a lawyer-client or attorney-prospective client relationship. Readers should not act upon this information without seeking advice from professional advisers. Additionally, this Firm limits its practice to the states of Arizona and New York

Well Share Managers

Arizona well share managers oversee the management of shared water wells. They are responsible for making sure the well is successfully managed.

Manage the Designated Bank Account– A designated bank account should be used well pump electricity, well repairs, and well maintenance. Traditionally, each property owner pays a flat amount to cover the cost of the electricity and to set aside money for repairs. The well manager can periodically send a statement to all parties to the well share agreement so they can see how much money is sitting in the bank accounts.
Paying the Utility Bills– Wells use electric pumps to bring water to the surface. Similar to the electricity bill for your home, a utility bill is generated each month. The well share manager can verify that each homeowner paid their fair share and their pay the bill.
Repairs to Water Wells-Water well share managers are responsible for contacting and coordinating repair and maintenance to the shared well. paying the costs of repairs.
Water Quality– Well water quality is of utmost importance. Imagine if everyone was drinking tainted water? The well manager can schedule water quality tests, send the results to all parties and keep records of the results.

A well share bank account can help the parties save a little each month to cover the cost of expensive repairs.

1. Pay the Electricity Costs for the Well

Electric pumps bring water from the well into a storage tank. Traditionally, there is a single electricity meter attached to the pump. As such, it is impossible to tell how much electricity was used to deliver water to a particular household. For this reason, most Parties to a shared well agreement pay an equal amount of money each month for the electricity.

2. Save for Major Repairs to the Water Well

The second major reason homeowners use a joint checking account is to set aside a little money each month for major repairs to the well. With this nest egg, no one is left scrambling to come up with the money.

Major repairs may include replacing a pump, fixing a water leak, or even deepening the well.

Open the Bank Account Now– Even if the well share agreement is not finalized it is not too early to open the shared bank account.
Specific Purpose– The well share bank account should not be used for any other purpose than maintaining the water well.
Equal Access to the Bank Statements– The bank can send monthly statements to each homeowner. This way, every can verify that the electricity bill is being paid and that the accumulated money stays in the account.

If you have questions about how a shared well manager can help with your shared well then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

These blog posts are not intended, nor shall they be deemed to be the rendering of legal advice. Reading these blog posts does not create an attorney-client relationship, nor shall it impose an obligation on the part of the attorney to respond to further inquiry. The Dunaway Law Group limits its practice to the states of Arizona and New York.

Understanding Rule 16 of Civ. Pro- Meet and Confer

When navigating the complexities of a Superior Court case in Arizona, one crucial aspect to understand is Rule 16 of the Arizona Rules of Civil Procedure. This rule plays an important role in the pre-trial phase of a case, helping to streamline proceedings and to “discourage wasteful, expensive, and duplicative pretrial activities.”

What is Rule 16?

Rule 16 of the Arizona Rules of Civil Procedure outlines the procedures and requirements for pretrial conferences and orders. Its primary goal is to facilitate the management of a case from the early stages, promoting efficiency and clarity for both the court and the involved parties.

Key Elements of Rule 16

1. Pretrial Conferences

Under Rule 16, the court may order one or more pretrial conferences to discuss various aspects of the case. These conferences aim to:

Expedite the disposition of the action.
Establish early and continuing control to prevent protraction due to lack of management.
Discourage wasteful pretrial activities.
Improve the quality of the trial through thorough preparation.
Facilitate settlement of the case.

2. Subjects for Consideration at Pretrial Conferences

During these conferences, several topics may be addressed, including:

Simplification of the issues.
Amendments to the pleadings.
Admissions of fact and documents to avoid unnecessary proof.
Limitation of the number of expert witnesses.
Discovery schedule and deadlines.
Identification of witnesses and exhibits.
Settlement discussions and potential resolution without trial.
Any other matters that may aid in the disposition of the case.

3. Pretrial Orders

Following the pretrial conference, the court issues a pretrial order that recapitulates the decisions and agreements made during the conference. This order is crucial as it dictates the future course of the case, ensuring that all parties are on the same page regarding the trial’s preparation and conduct.

4. Modification of the Pretrial Order

The pretrial order can only be modified to prevent manifest injustice. This means that changes to the order are not made lightly and require a compelling reason, ensuring stability and predictability in the pretrial process.

Importance of Rule 16

Streamlining the Case

By addressing critical issues early on, Rule 16 helps streamline the case, potentially reducing the time and resources spent on unnecessary litigation steps. This efficiency benefits not only the court but also the parties involved, leading to a more effective resolution of the dispute.

Encouraging Settlement

Pretrial conferences under Rule 16 encourage settlement discussions, increasing the chances of resolving the case without a full trial. This can save significant time and costs for both parties and the judicial system.

Enhanced Preparation

With a clear pretrial order in place, both parties can prepare more effectively for trial. This thorough preparation helps improve the quality of the trial, as both sides are well-informed about the issues, evidence, and witnesses.

Conclusion

Rule 16 of the Arizona Rules of Civil Procedure plays a crucial role in managing Superior Court cases. By emphasizing pretrial conferences and orders, it ensures that cases are handled efficiently, encourages settlements, and enhances trial preparation. Understanding and adhering to Rule 16 can significantly impact the outcome of a case, making it a fundamental aspect of civil litigation in Arizona.

If you need help from an experienced Arizona 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, PLC limits its practice to the states of Arizona and New York.

48 Hour Notice to Enter

A 48 hour notice must be given to Arizona tenants before their landlord can legally enter the rental property. Arizona landlords have the right to periodically enter their rental properties, however, the Arizona Residential Landlord Tenant Act states that entering the property is a right with limitations. In particular, landlords should not use the 48 hour notice as a way to harass or intimidate tenants.

Proper Notice to Arizona Tenant

A.R.S. § 33-1343(D) states that, “the landlord shall give the tenant at least two days’ notice of the landlord’s intent to enter and enter only at reasonable times.” Although the law does not specify that the notice must be written (as opposed to verbal), it is a good idea to post written notice of intent to enter, or send via mail, so that you as a landlord have proof that you followed the proper procedure.
See A.R.S. § 33-1343(D)

A.R.S. § 33-1343(A) states in part that “the tenant shall not unreasonably withhold consent to the landlord to enter into the dwelling unit in order to inspect the premises, make necessary or agreed repairs, decorations, alterations or improvements…” or show the property to potential buyers. If the tenant won’t allow you to enter the property, it is grounds for eviction.
See A.R.S. § 33-1343(A)

Emergency access to rental property

Per, A.R.S. § 33-1343(C) an Arizona landlord may enter the rental property without delivering a 48 hour notice in the case of emergency. For example, if there is smoke billowing from the windows or water is pouring out from under the doors, an Arizona landlord does not have to provide a 48 hour notice before entering.

Landlord Harassment

Arizona landlords cannot use ability to enter the property as a way of harassing or intimidating a tenant. According to A.R.S. § 33-1343(D) “the landlord shall not abuse the right to access or use it to harass the tenant.” One of the most common defenses a tenant brings up in court is that their landlord was harassing them. Avoid anything that even resembles harassment so your tenant can’t use that as a defense if you end up having to evict them.

tenants’ rights to wrongful access

Arizona law requires that landlords give tenants at least a 48 hour notice prior to entering the property. However, what options do tenants have if their landlord just enters the rental property without proper notice? The Arizona Residential Landlord Tenant Act addresses this exact issue. A.R.S. § 33-1376(B) states:

“If the landlord makes an unlawful entry or a lawful entry in an unreasonable manner or makes repeated demands for entry otherwise lawful but which have the effect of unreasonably harassing the tenant, the tenant may obtain injunctive relief to prevent the recurrence of the conduct or terminate the rental agreement. In either case, the tenant may recover actual damages not less than an amount equal to one month’s rent.”

So this statute provides an Arizona tenant with two different options if the landlord enters the property without permission or is constantly demanding to enter the rental property to the point that it becomes a form of harassment.

Two Options Available to Arizona Tenants

Obtain Injunctive Relief– This is a fancy way of saying the Arizona tenant must obtain an Injunction Against Harassment or Restraining Order against the landlord. With either of these tools you will have the backing of the court to stop the harassment.
Terminate the Rental Agreement– Regardless of how much or how little time is left on your lease, if your Arizona landlord has repeatedly entered the rental property without giving you a 48 hour notice then a tenant may have the right to cancel the lease.

Monetary Damages Against Trespassing Landlord

The second part of A.R.S. § 33-1376(B) requires an Arizona landlord to pay the tenant a “fine” equal to one month’s rent for trespassing without a 48 hour notice. So for example, if rent is $1,500 per month then a court could require the Arizona landlord pay $1,500 to the tenant.

However, in order to recover the one months rent from the landlord a tenant must elect one of the two options from above. Meaning, the tenant must either obtain an Injunction Against Harassment / Restraining Order or actually terminate the lease agreement. An Arizona tenant cannot say, “well, the landlord entered my property without giving me a 48 hour notice and so now I want my money.”

Conclusion

Arizona landlords, give your tenants 48 hour notice before entering the rental property and tenants, do not unreasonably deny your landlord access to their rental property!

If you are an Arizona landlord and have questions about 48 hour notices then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

* These blog posts are not intended, nor shall they be deemed to render legal advice. Reading these blog post does not create an attorney-client relationship, nor shall it impose an obligation on the part of the law firm to respond to further inquiry. The Dunaway Law Group limits its practice to the states of Arizona and New York.

Runs With the Land

What is “Runs with the Land”?:
The legal doctrine of “runs with the land” refers to a principle that attaches certain rights, obligations, or restrictions to a piece of real property rather than to a specific individual. In other words, these rights or obligations are not personal to the current owner but are tied to the property itself. Meaning that when a property changes hands, these rights and obligations automatically transfer to the new owner.

This legal principle applies to well share agreements and so it is essential to understand how the rights and obligations regarding the shared well will be transferred from one owner to the next.

Key Elements of the Doctrine: To better understand the “runs with the land” doctrine, it’s essential to understand its key elements:

1. Intent of the Parties: The parties involved must have the intent to bind the right or obligation to the property. This intent is typically demonstrated through clear and unambiguous language in legal documents, such as well share agreements, deeds, leases, or grants of easement.

2. Touch and Concern: For a right or obligation to run with the land, it must have a direct relationship with the land. In legal terms, it must “touch and concern” the property in question. This means that the right or obligation should impact the property’s value, use, or enjoyment. A water well greatly impacts property value, use, and enjoyment.

Examples of Rights that Run with the Land:

1. Easements that Run with the Land: An easement is a common example of a right that runs with the land. An easement allows someone other than the property owner to use a portion of the land, such as for access, utilities, or drainage. When an easement runs with the land, it remains in effect even when the property changes ownership.

2. Covenants and Restrictions: Property covenants and restrictions are often included in homeowner association agreements or neighborhood development plans. These covenants can address issues like architectural design, land use, and maintenance requirements. When they run with the land, they are binding on all subsequent owners of the property.

3. Well Share Agreements: Arizona well share agreements run with the land. Meaning the rights and obligations of the agreement pass to a new owner even if the owner did not sign the existing well share agreement.

Benefits of “Runs with the Land”:
The “runs with the land” doctrine provides stability and predictability in property transactions. It ensures that parties are aware of existing rights and obligations related to a property, reducing disputes and potential legal conflicts. This principle is particularly valuable in providing homeowners with a legal right to well water.

While the “runs with the land” doctrine offers numerous advantages, it can also lead to challenges, if the underlying agreement was poorly written. It may seem counterintuitive but a lengthy and detailed agreement can often provide more clarity than a short or vaguely written agreement.

Contact Us: If you have questions about how a well share agreement or other water rights can impact your real estate purchase/sale, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

steps to recording an assessment lien

Pitfalls of Wrongfully Recording a Lien

A.R.S. § 33-420(A) states:

well share manager tasks

PURPOSE OF THE WELL SHARE BANK ACCOUNT

1. Pay the Electricity Costs for the Well

2. Save for Major Repairs to the Water Well

What is Rule 16?

Key Elements of Rule 16

1. Pretrial Conferences

2. Subjects for Consideration at Pretrial Conferences

3. Pretrial Orders

4. Modification of the Pretrial Order

Importance of Rule 16

Streamlining the Case

Encouraging Settlement

Enhanced Preparation

Conclusion

Proper Notice to Arizona Tenant

Emergency access to rental property

Landlord Harassment

tenants’ rights to wrongful access

Two Options Available to Arizona Tenants

Monetary Damages Against Trespassing Landlord

Conclusion

Examples of Rights that Run with the Land: