There are many benefits to having an accurate shared well agreement. A well (pun intended) written well agreement provides well owners (“Grantors”) and the shared well water recipients (“Grantees”) assurances that their interests will be protected.
It gives the well owner an enforceable contract against the Grantees that they pay their portion of the maintenance, repairs, water and electricity.
grantor rights under the agreement
Grantors have an enforceable contract that requires the Grantees to pay their equal share of well maintenance, repairs, water and electricity.
grantee rights under the agreement
Shared well agreements give certain assurances to Grantees–the people receiving the water–that they will have access to the well water. Without a written shared well agreement, a well owner could deny access to anyone wishing to access the water. Grantees have an enforceable contract that they will have access to water.
amend or rewrite the well share agreement
Many of existing well share agreements are old, inaccurate, and do not reflect the current goals of the Grantor and Grantees. Most agreements have a provision that addresses the issues of amendments to an existing well agreement.
Property descriptions are often inaccurate and outdated. When parcels are divided, they are given new parcel i.d.’s and if the shared well agreement is not updated then the descriptions will be inaccurate.
For example, it might read: “This agreement can only be modified in writing with a majority of the parties agreeing to the changes.” Or the agreement might require all parties to approve any modifications to the agreement.
Once the required number of parties to the existing agreement have approved the changes then they can be made. Or the parties may agree that now is the time to create an entirely new agreement. Negotiating a new agreement allows the parties to remove portions of the existing agreement, clarified, or entirely new provisions can be added.
inacurrate ownership information
When a property containing the well is sold then the ownership information must be updated with the Arizona Department of Water Resources. Often a property will be sold many times without the new ownership information being submitted to the ADWR.
latecomers to the shared well agreement
Occasionally, when a new home is built on a previously empty lot the shared well agreement is not updated to reflect the new user. Ideally, when a parcel is sold, the original shared well agreement is re-written. Some of the benefits of rewriting the shared well agreement. First, the buyer’s names are actually written into the agreement and their signatures reflect their personal acceptance/commitment to the agreement.
Second, when re-drafting the agreement, you can make adjustments to it. For instance, maybe you want to prohibit certain actions like filling a swimming pool or watering fruit trees. Maybe the property owner wants to increase or decrease the amount of money paid into the reserve bank account.
Additionally, there is a psychological benefit to drafting the latecomers into the agreement. This way, they are personally committing themselves to the agreement versus just referencing something that someone else agreed to.
Create a maintenance schedule. Proper maintenance of the well and its components will make it last longer and ultimately save the Parties money.
Shared Well Agreements with neighbors are complex and potentially messy relationships. In Humphries v. Becker, the parties entered into a Shared Well Agreement, but did not properly identify the well. The property was conveyed to a purchaser who, based on representations of the seller, believed that the well subject to the Shared Well Agreement would be sufficient to provide water to both the house and their irrigation system. In reality, the well serving the irrigation system was on a farmer’s adjacent property and was only used with his permission. The farmer cut off the irrigation water usage when a conflict arose between the purchaser and the farmer. As a result, the purchaser sued the seller for misrepresentation. The original parties’ failure to sufficiently identify the well in the Shared Well Agreement caused the seller to incur the expense of costly litigation that could have been avoided. Humphries v. Becker, 159 Idaho 728, 366 P.3d 1088 (2016).
If you need help from an experienced shared well 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 State of Arizona.