Civil Litigation Archives | Dunaway Law Group, PLC

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

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 of Civil Procedure?

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.

Under Rule 16(b)(1), the conference call is to take place no later than 30 days after a defendant files an Answer. During the conference the parties should discuss “whether and how they can agree to streamline and limit claims and affirmative defenses to be asserted, discovery to be taken, and motions to be brought. The purpose of the conference is to plan cooperatively for the case, and to facilitate the case’s placement in one of three tiers discovery. The attorneys of record and all unrepresented parties who have appeared in the action are jointly responsible for arranting and participating in the Early Meeting.”

Topic for the Early Meeting should include; Anticipated disclosures concerning witnesses, including the number of fact witnesses, whether they will seek to use expert witnesses, and how much deposition testimony they expect will be necessary. Motion they expect to file, so that the parties can determine whether any of the motions can be avoided by stipulations, amendments, or other cooperative activity.

Rule 16(c)(1) “No later than 14 days after the Early Meeting, the parties must file a Joint Report and a Proposed Scheduling Order with the court.”

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 of Civil Procedure

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.

* 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.

Joint and Several Liability

The legal doctrine of joint and several liability is a fundamental concept in tort law and contract law that plays a crucial role in determining who is responsible for damages when multiple parties are involved in a legal dispute. This doctrine is often applied when harm or injury occurs due to the actions or negligence of more than one party. In this blog post, we will delve into the concept of joint and several liability, understand its principles, and explore how it is applied in legal cases.

Understanding Joint and Several Liability

Joint and several liability is a legal doctrine that allows for multiple parties to be held collectively and individually responsible for a plaintiff’s injuries or damages. This means that in cases involving two or more defendants, the plaintiff can choose to pursue the entire judgment from one defendant or apportion the damages among multiple defendants, depending on their financial ability or degree of fault.

Key Elements of Joint and Several Liability

Multiple Parties: Joint and several liability comes into play when there are multiple parties involved in a legal dispute. These parties can be individuals, businesses, or entities that share responsibility for the plaintiff’s harm.
Individual Liability: Each party can be held individually liable for the full extent of the plaintiff’s damages. In other words, a plaintiff can seek to recover the entire amount from any one defendant, even if that defendant’s actions were not the sole cause of the harm.
Right to Contribution: Defendants who are held responsible for damages beyond their share can seek contribution from the other responsible parties. This means that if one defendant pays more than their fair share of the damages, they can later recover the excess amount from the co-defendants.
Several Liability: In cases where the plaintiff chooses to apportion damages among multiple defendants, each defendant will be held liable only for their share of the damages. This approach is known as several liability, and it ensures that defendants are responsible for the damages they caused.

Applications of Joint and Several Liability

Personal Injury Cases: Joint and several liability is commonly used in personal injury cases where multiple parties may be at fault for an accident. For example, in a car accident involving a negligent driver and a municipality with poorly maintained roads, the injured party may choose to recover damages from either the driver, the municipality, or both, depending on the circumstances.
Product Liability: In product liability cases, manufacturers, distributors, and retailers may be held jointly and severally liable if a defective product causes harm to a consumer. The injured party can choose to sue any or all of the responsible parties.
Contract Disputes: Joint and several liability can also arise in contract disputes. For instance, if multiple parties are jointly responsible for fulfilling the terms of a contract and one party fails to meet their obligations, the innocent party may seek to recover the full amount of damages from any or all of the defaulting parties.

Conclusion

Joint and several liability is a legal doctrine that serves to ensure that plaintiffs are adequately compensated when they suffer harm due to the actions or negligence of multiple parties. It provides flexibility in legal proceedings, allowing plaintiffs to seek recourse from the party or parties best able to satisfy the judgment. At the same time, it holds all responsible parties accountable for their contributions to the plaintiff’s injuries or damages. Understanding this doctrine is essential for individuals, legal practitioners, and businesses alike, as it has far-reaching implications in various areas of law, including tort law and contract law.

If you are looking for an experienced litigator, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.

Statute of Frauds

What is the Statute of Frauds?

The Statute of Frauds is a legal doctrine that requires certain types of real estate contracts be in writing to be legally enforceable. Its primary purpose is to prevent fraudulent claims and misunderstandings arising from verbal agreements and to create a clear and verifiable record of important contractual obligations. In Arizona, the Statute of Frauds for real property transactions is governed by A.R.S. § 44-101.

Real Property Transactions Covered by the Statute of Frauds in Arizona

The Arizona Statute of Frauds mandates that contracts involving the sale, exchange, or lease of real property, or any interest in real property, must be in writing to be legally enforceable. This encompasses a wide range of real estate transactions, including but not limited to:

Sales of Land and Homes: Any agreement to buy or sell a piece of land or a residential property, whether it’s a single-family home or a condominium, must be documented in writing to be legally binding.
Lease Agreements: If you’re entering into a lease agreement for real property, such as leasing a commercial space or residential unit for a term exceeding one year, it must also be in writing to be enforceable.
Real Estate Option Contracts: Option contracts, which give one party the right to buy or sell real property at a specified price within a specified timeframe, must be in writing to be legally valid.

Key Elements of a Valid Written Agreement

To comply with the Statute of Frauds in Arizona, a written agreement related to real property transactions must include certain key elements:

Identification of the Parties: The names and addresses of all parties involved in the agreement must be clearly stated.
Property Description: A detailed description of the real property being transacted, including its legal description, address, and any relevant parcel or tax identification numbers, should be included.
Terms and Conditions: The terms of the agreement, including the purchase price, financing arrangements, and any contingencies or conditions, should be spelled out.
Signatures: The written document should be signed by all parties involved. Signatures are a critical component of demonstrating consent and intention to be bound by the contract.

Implications of Non-Compliance with the Statute of Frauds

Failing to adhere to the Statute of Frauds can have significant consequences. A contract that doesn’t meet the statutory requirements is generally unenforceable in a court of law. This means that parties may not be able to enforce their rights, collect damages, or compel performance if the contract is solely oral or inadequately documented.

Seek Legal Guidance

In conclusion, the Statute of Frauds in Arizona is a fundamental legal doctrine that underscores the importance of written agreements in real property transactions. If you need assistance with a real property transaction or dispute 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.

Improperly Recorded Documents

In Arizona, there are no real protections that prevent someone from recording fraudulent documents with a county recorder. A person can literally quit claim the Arizona State Capital building to themselves and the county will record it. The recorder’s office does not have the ability or duty to confirm that the documents are legitimate. This can obviously cause real problems!

There are multiple occasions where I’ve had a client come into my office panicked because some type of fraudulent document had been recorded involving one of their properties. I’ve seen cases where easements were added without the owner’s knowledge or permission. Plus, I’ve seen parcels split or property completely transferred to another person!!!

WHAT CAN YOU DO IF SOMEONE RECORDS A FRAUDULENT DOCUMENT against your property?

Arizona law will not prevent someone from wrongfully recording documents with the county, however, state law provides for severe punishment against those who do.

A.R.S. § 33-420(C), provides penalties against anyone who wrongly records a document. If found guilty, the court can award a minimum penalty of $5,000, or treble damages for the actual financial harm, and attorney’s fees.

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)

How to Remove an Invalid Lien

Occasionally, I am approached by clients who believe someone has recorded an invalid lien against their property and want to know what they can do to remove it.

A.R.S. 33-420: Discusses the issue of removing groundless or fraudulent liens that have been recorded with the county.

A.R.S. 33-420(A): Provides a property owner at least $5000, or treble the actual damages caused by the recording of forged, groundless, misstated, or contains false claims.

A.R.S. 33-420(C): Provides the property owner $1000, or treble actual damages, whichever is greater, and attorney fees and costs, if he willfully refuses to release or correct such document of record within 20-days from the date of a written request from the owner or beneficial title holder of the real property.

If you need help from an experienced shared well attorney, then contact the Dunaway Law Group at 480-702-1608 or message us HERE.