Well Sharing Archives | Dunaway Law Group, PLC

What Should Be In a Well Share Agreement

If your water comes from a shared well that is not located on your property, then you must takes steps to protect your legal right to the water. For most people, the answer is in the words written in your well share agreement. 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 you the right to extract groundwater. That comes only from a permitted well.

Just Owning Land Does Not Give You Right to the Groundwater Beneath Your Land

Drilling and constructing a well creates a permanent change to real property and those improvements cannot be separated from the land, therefore, the well becomes a part of the real property.

Groundwater is not real property. Percolating water beneath the earth in Arizona is called “groundwater” and it is considered “public” property managed by the Arizona Department of Water Resources.

The Arizona Department of Water Resources recognizes that shared wells can, and should be, registered in the name of the person or party that is responsible for its management. The ADWR has created a form (ADWR form 55 – 73) for the purpose of registering a shared well in the name of a managing or operating group.

Once water is pumped to the surface and placed into a storage tank, it becomes the personal property of the land owners.

shared well easements

Some well share agreements are drafted such that the parties receive only an easement right to access the land where the well is located. There is a major difference between owning an undivided interest in a piece of real estate versus having just an easement.

If you would like to draft or amend a shared well agreement then contact the Dunaway Law Group by phone at 480-702-1608 or by email at Clint@DunawayLG.com.

How To Cancel Well Share Agreement

Is it Possible to Cancel a Shared Well Agreement?

Before addressing the question of how shared well agreements are cancelled, let’s first explore how shared well agreements are created.

A shared well agreement is a contract regarding the drilling, maintenance, and use of a water well between multiple users. The agreement identifies Parties, properties, well location and water distribution system, maintenance liabilities, and easements.

Parties are identified by their full legal names. The properties, well, and easement locations subject to the agreement must be identified using valid legal descriptions and a diagram showing the locations of the well and distribution system attached as exhibits. Failure to properly the terms of use and maintenance liabilities can lead to future misunderstandings and disputes. Additionally, a shared well agreement should be both notarized and recorded with the county recorder’s office.

Shared well agreements are simply contracts entered into by people sharing water from the same well. Like most contracts, these well share agreements can be modified, amended, or terminated once corresponding rules are met.

A professionally drafted shared well agreement will explain the process of amending or cancelling an existing agreement. They will often say something like, “This agreement can only be modified in writing and with the approval of a majority of the parties.” Or, the contract might require unanimous consent by all of the Parties.

shared well agreements “run with the land”

“Running with the land” refers to the rights and obligations in real estate that remain with the property regardless of who owns it. These rights and obligations are tied to the property and not to the owner and so they stay in place as the land is transferred from one owner to another and so a property owner cannot simply say, “I’m going to cancel the agreement”.

The importance of this means that an Arizona property owner who purchases a home with a shared well is obligated to abide by the well share agreement even if they did not sign it!

Lastly, remember that the Arizona Department of Water Resources does not regulate shared well agreements. Therefore, it will not become involved in interpreting or enforcing the agreements. So make sure that your shared well agreement is professionally written because if there are errors, if some topics are vague or ignored, it can create a lot of problems in the future.

The Dunaway Law Group drafts and amends shared well agreements. If you are looking to draft a new agreement or make modifications to an existing shared well agreement then contact us at 480-702-1608 or Clint@DunawayLG.com.

* 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.

Buying a House with a Shared Well

When buying a home with a shared water well, there are certain considerations to keep in mind. Many homebuyers have questions and concerns about shared wells because they’ve never lived somewhere that had a shared water well. By definition, a shared well is a water well that services two or more homes for residential purposes.

If you are consider buying a home that has a shared well, there are a few important things to keep in mind:

Is there an existing shared well agreement? Is it up to date? Accurate?
What are the monthly operating costs?
Are there any built-in contingencies for remediation, repairs, maintenance, and quality testing?
Are there any restrictions placed on your system? For instance, does the shared well agreement prohibit the use of swimming pools? Or does it prohibit
Are there records of periodic inspections and repairs?

It is imperative that a shared well is functionig properly, otherwise dozens of people may be without water!

Here are a couple of things you should find in your shared well agreement:

Specification of the cost involved to share your pump in regards to power, repairing, testing and inspecting.
Requirement for corrective courses of action if testing reveals a deficiency.
Prohibit the use of the well water by any party for any reasons other than for bona fide domestic usage.
No additional residences may connect and use of the water.

the importance of maintaining proper shared well records

Over the years, shared well records and agreements often become increasingly innacurate. New owners will began accessing the well without written record or the parcel size / shape is changed because it has been split.

If you are looking to draft a new shared well agreement or make amendments to an existing shared well agreement then contact us at 480-702-1608 or email Clint@DunawayLG.com.

Well Maintenance Schedule

WELL MAINTENANCE

If you are among the hundreds of thousands of Arizonians who rely on a private well system for your water supply, then it is imperative you create a maintenance schedule and method for record keeping. Set a maintenance schedule to test your water in to inspect your well, water treatment, and septic systems.

CREATING A WELL MAINTENANCE SCHEDULE

Set a maintenance schedule to inspect and test your well water, septic system, and water treatment. Private water supply systems require routine maintenance. These simple steps will help protect your well water system:

Perform annual tests for a minimum of bacteria.
Test your water anytime there is a change in taste, odor or appearance or someone is ill or pregnant.
Keep hazardous chemicals, distinct, fertilizer, pesticides and motor oil, far away from your well.
Periodically check your bill headed for damages in the well cap.
Allow only grass to grow around your well. Other plants can have longer roots and can damage your well casing.
Take care when working and mowing around your well. Damage to the casing can jeopardize the sanitary protection of your well. Don’t pile snow, leaves or other materials around your well.
Keep the Always keep it up using the maintenance and water testing logs in a manual.

The safety and purity of drinking water and the efficient operation of your well system depends on a properly organized maintenance schedule. Protect your investment in quality water supply through regular inspection, testing and repair. Similar to maintenance and repair on your car.

Gather a comprehensive history on your well and water quality. If you don’t already have a well log or well record, it’s not too late to start.

Well Inspection Maintenance Schedule

Inspect the water well several times a year. Check the condition of the well covering, casing and well cap to make sure all are in good repair, leaving no cracks or another open points for potential debris and pollutants.

Have the well system, including the pump, storage tank, pipes and valves, and water flow inspected every five years by a licensed well contractor. However, if you have no inspection record and cannot determine the age of the well, have it inspected immediately by a licensed well contractor. A properly maintained well usually has a serviceable life of more than 20 years.

Water Testing Schedule

When should you have your water tested? Have you water tested when you purchase a property, annually, and when necessary.

To keep your well water clean and well operating at peak performance, regular water testing is a must. Private well owners are solely responsible for the quality of their drinking water. So, it is up to you, how and when to test your water.

1. Initial Water Testing

When a new well is drilled.
If there is no record of testing.
You’re buying a home with a well.

2. Annual Water Testing

At a minimum, well water should be tested every year.

3. Intermediate Testing of Well Water: The well water should be tested immediately if;

You install a treatment system.
There is a sudden change in taste, color, or odor.
Someone in the home is pregnant or nursing.
Failure of a septic system.
After a flooding event.
Someone in the home has a sudden, unexplained illness.

What Contaminants Should You be Testing For in Your Well Water? At a minimum, test for the following common contaminants:

Bacteria-this is the most common contaminant found in well water.
Nitrates- faulty septic systems and fertilizers.
Lead- from household plumbing.
Arsenic- occurs naturally and was once a common ingredient in pesticides.
Additional contaminants- Other tests may be required depending on where you live and what is located near your water supply.

Who Can Test My Well Water? There are companies that have been accredited and certified to test well water. Search local laboratories by clicking HERE.

Schedule Physical Inspections of the Well

Regularly inspect your wellhead for damage to the casing or well cap. Repair any damage immediately to reduce the potential for contamination. Store all chemicals at least 100 feet from your well. Keep heavy equipment and vehicles off your lawn and away from your well to avoid damage to buried water lines. Other than grass, do not let plants grow near your well as plant roots can cause damage to your well casing.

Inspect and Protect the Wellhead

The most visible portion of your drinking water system is the wellhead, the structure built over the well to protect its various parts. The wellhead is your first line of defense to prevent pollutants from entering your drinking water system. The wellhead protects the well casing, which is the lining of the well, and the well cap, which provides a tight-fitting seal at the top of the well. Inspect your wellhead regularly to make sure these elements are in good condition. By protecting your wellhead, you will help ensure the quality of your water supply.

Schedule Septic System Maintenance

Set a maintenance schedule to inspect and test your septic system. Keep records of maintenance, test results, and repairs to help your contractor with future repairs. To avoid well contamination, septic tanks should be pumped every three to five years based on use and family size. Inspect septic tank each year for capacity and leaks. Repair the tank or drain field system as needed to prevent leaks of bacteria and nutrients into groundwater. Faulty septic system poses a serious threat to the quality of your drinking water and can require expensive repairs.

At a minimum, your water should be tested every year for bacteria, the most common water quality problem.

RECORD KEEPING

What well water records should be kept? Keep records of maintenance, test results, and repairs to help your contractor with future repairs.

What Well Records Should be Kept?

Copies of the well share agreements, electricity usage, bank account balances.

How & Where Should the Well Records be Kept?

Ideally, the records will be kept in a safe location, where they can easily be updated and accessible by all parties to the well share agreement.

The real estate attorneys of the Dunaway Law Group can assist you with all of your professional well water services. Contact us by phone at: 480-702-1608 or email us at Clint@DunawayLG.com.