Water Wells Archives | Dunaway Law Group, PLC

Water Well Agreements Arizona

Shared Water Well Agreements

What are your rights to water that comes from a shared well that is not located on your property? For most people, the answer is in their written well share agreement.

The first question to be considered is—which state regulating body grants me the right to access and use groundwater? The Groundwater Management Act “GWMA” of 1980 established that groundwater, is common property of the citizens of Arizona and the management of it was under the Arizona Department of Water Resources, (ADWR). All groundwater withdraws in Arizona must come from a water well that was permitted by ADWR.

Owning the land or having an easement right does not give you the right to extract groundwater. The right to extract groundwater in Arizona only comes from having a permitted well.

Therefore, a well share agreement to share the water from a legal source should always refer to the well by its ADWR registration number.

On Whose Land Does is the Well Located?

The second question to be considered is: whose land is the well located on? If the well is located on land that is titled in the name of one of the members of the well share group, then that person owns the well. Drilling and constructing a water well creates a permanent change to real property and that improvement cannot be separated from the land, therefore, well becomes a part of the real property. Groundwater is not real property. Percolating water beneath the earth in Arizona is called groundwater and in it is considered “public” property managed by the ADWR.

If the well is located on your neighbor’s lot, and they hold title to the land in their name, the well should be registered with the ADWR in their name. The ADWR 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 Form 55-73 , for the purpose of registering shared wells in the name of a managing or operating group. Registration of a well with the ADWR does not establish ownership of the well. A.R.S. § 45-593(c), requires that the owner of the land keep the ADWR up-to-date as to who owns the land and where the well is located. For this purpose, the ADWR created Form 55-71(a), request to change well information.

well is owned by those named on the deed

When a shared well site is situated on a parcel of land that is deeded and recorded in the appropriate Arizona county, the well is owned by the names listed on that deed. The wording of many well share agreements may grant several owners an undivided interest in into a small piece of land, and thus an undivided real property interest in the well. When this wording is used on the deed and in the shared well agreement, the assessors map should show a smart parcel of land with its own Assessor’s Parcel Number (APN). In this case, the well should be registered in the name of all parties listed on the deed.

If your well share agreement is worded in the same manner as the deed, you own an undivided piece of this land which means that you are also subject to a portion of the yearly property taxes or improvement assessments on this parcel.

Once water is pumped to the surface from a registered well, and placed in the storage tank, it becomes the personal property of the owners of the land. So, if you own a percentage of the land via the deed, then you also own a percentage of the water stored on it.

easement rights & ownership rights

Some well share agreements are structured such that the participants 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, partial ownership, versus having just a vested interest in someone else’s real property granted by an easement. An easement is a vested interest in someone else’s real property and not an undivided fraction of title to the land into the well.

An easement will typically state that it was granted for a specific purpose. If your well share agreement is an easement right of entry you should verify that you have a right to do more than merely access someone’s land. The wording of that easement may, by exclusion, not grant you are right to receive and share the water, located on that property. An easement is a vested interest only in someone else’s real property for a specific purpose and groundwater is not a part of real property.

arizona water well agreements- pre-1980

Many well water agreements in place today were written prior to 1980, when groundwater was more loosely considered to be a part of the real property. These older versions often refer strictly to the land and not to the water or the registered well. Well share agreements that refer strictly to a piece of real estate, and do not state the registration number of a well, may not be granting you a legally defensible right to the groundwater. A registered water well is the only legal right to the public groundwater resource and it is granted only to the permitted owner of the land. This is a very compelling reason why all well share agreements should refer to the water well being shared by the registration number.

Well share agreements should define a legal right to groundwater from a registered well. A well share agreement is a legal contract between two or more persons and it can be enforced by the courts. Not complying with the well share agreement can constitute a breach of contract.

If you are considering the purchase of a home with a shared well then read on post of what to expect when living in a home with a shared well. Also, review what a website that will help you schedule and record maintenance records and other important information.

If you would like to amend an existing water well agreement or would like to create a water well agreement then contact the Dunaway Law Group, PLLC at 480-702-1608 or [email protected]

* 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.

Buying a House with a Shared Well

When buying an Arizona home with a shared water well, there are certain considerations to keep in mind. Many homebuyers have questions and concerns about shared wells when they’ve never lived in a house that shares a 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?
Are there records of periodic inspections and repairs?

inspect the well prior to the purchase

A well inspection is not a legal requirement to purchase a home but

It is important to note, that Arizona home inspectors do not conduct inspections of water wells. They inspect every square inch of the home but not the well. Therefore, the well could have serious problems and you would never know!

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.

disclosure forms provided by AZ realtors

The Arizona Association of Realtors as a trade association has enacted standards for the management of all exempt wells in the state of Arizona during sales and transfer of real estate. This fantastic idea is being done by the Realtors association without authorization by the Arizona Legislature or ADWR.

The Arizona Realtors group has authorized and put into place two forms that all Realtors must use to inform buyers of real estate served by private water wells. They must be used for each transaction involving private or shared water wells. They are the Domestic Water Well Addendum and the Domestic Water Well Water Use Addendum Seller’s Property Disclosure Statement. They promulgated these forms because it is essential information necessary for the protection of the health, safety, and welfare of home buyers relying on exempt wells.

The first, the addendum, must be signed by both the seller and the buyer. This informs the buyer that the Arizona home is supplied with water from a residential water well. The second form, the disclosure statement, provides the buyer with the best detailed information about the well that the seller can provide. Most well owners are not familiar with the information requested on the form. The “best information that the seller can provide” is what a buyer gets from this form.

prepare early to avoid delays in closing

A proper shared well agreement requires the signatures from the owners of each property that will be receiving water from the well. Hammering out the details of the agreement can be an incredible hassle. Sometimes a homeowner will dig in their heels over a certain provision. The back and forth can cause the sale to be delayed if the parties do not plan accordingly.

the importance of maintaining proper shared well records

Shared well agreements and their records can often become more and more 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 shared well agreement or make amendments to an existing shared well agreement, then contact us at 480-702-1608 or message us HERE.

Registering Water Wells

Arizonians must register their water wells with the Arizona Department of Water Resources (ADWR). Registering a water well with the ADWR is a fairly straightforward process as described below.

WELLs must be REGISTered with the adwr

The Arizona Groundwater Management Act of 1980 mandated that all property owners register their wells with the newly formed Arizona Department of Water Resources (ADWR). All wells, public, domestic, agricultural, mining, etc. were to have been registered with ADWR and accounted for during the early 1980’s. A large majority of the wells were registered by 1985. Since that time, however, many of the properties where these wells are located were sold and transferred without informing ADWR there was a change of property owner.

The recording of a deed of title transferring the real estate does not notify ADWR that the well ownership has been transferred. Therefore, there are many registered wells in Arizona that are still listed with ADWR as being owned by the person who first registered the well in the 1980’s.

REGISTERING a WATER WELL

If your water well is not registered in your name, you may not have a known or definable source of water for your home. Arizona does not consider groundwater to be private property belonging to the landowner. Exempt well water rights are more like an operating permit to withdraw a state managed natural resource.

Additionally, if a well is not registered in the owner’s name then the Arizona Department of Water Resources cannot notify you of pending changes in groundwater law that may affect you water rights.

In Arizona, private well owners are left strictly on their own to manage and protect their water well. There are no standards for the performance of private or shared water wells during the sale and transfer of the real estate upon which the well is constructed.

Therefore, keeping your well records current with the ADWR and up to date for your own personal use is important to protecting your domestic water well and it is important to have your well information current and accurate for maintaining your water rights and for any future real estate sales or refinancing transactions. Furthermore, buyers and lenders will be asking for it.

VERIFYING THE REGISTRATION OF A WATER WELL

The first thing that any private well owner should do is check with the Arizona Department of Water Resources to see if the well is registered in their name. You can do this by logging on to the ADWR web site and searching its “Imaged Records“.

ADWR Forms Mandated by A.R.S § Title 45

Form DWR 55-71A can be used to correct or change well location information, the registered well owner’s name and address, the name of the well drilling company to be used to drill or deepen the well, or any other pertinent information about the well.

Arizona escrow officers will often use this form to record a transfer of well ownership with the Arizona Department of Water Resources at the time of escrow closing.

LOCATING WELL RECORDS

There are three basic ways to locate Arizona water well records. You can access well file data in the ADWR Imaged Records database the following ways;

1. Using the well registration number (55-000000), 2) by entering the file or cadastral (registry of real state property) designation of your well, or 3) by finding and clicking on a red dot a topographic map of the state of Arizona where your well is located. After locating your well records, you can download them in a pdf file format.

The first step is logging on to the ADWR web site as explained below. Log on to the ADWR Home Page and scroll down to Quick Links: and click on the Imaged Records logo, which will direct you to a page with a box named Search ADWR’s Imaged Records. Change the Imaged Record: field from “Groundwater Document” to “Well Record Document” using the scroll down menu on the right.

WELL LOCATION CADASTRAL

Finding a well’s location by the Cadastral: You can enter the cadastral location of your well in the Location box under Image Record drop down of Well Registry or Wells 35 document. The steps below illustrate how to enter the location of a well located in Section(S) 21 of Township (T) 13South (S) and Range (R) 15West (W), which is usually abbreviated: S21, T13S, R15W.

An alternative way to locate the records of a particular well is to use the ADWR Home Page. This will direct you to an image of a topographic relief map of the State of Arizona. If you choose the Wizard method, you are given three choices of methods to search for your well records, Well Registry number, Owner Name Search, Location Cadastral, Basin or Sub Basin.

If you choose the Map method of searching, you will see a map of the State of Arizona with tens of thousands of little red dots that indicate the approximate location of a registered well. You can zoom into a location on the map and when you have located your well, click on the red dot and this will open the imaged record file.

steps to registering a well

First Step to Register a Water Well– The first step to registering a water well is to visit Change of Well Ownership (azwater.gov) and enter the well’s 55- number.
Second Step to Register a Water Well– The second step to changing well ownership is to provide the new owner’s name and contact information.
Third Step to Register a Water Well– The third step to registering a water well is to provide proof of ownership. Lastly, you must pay a $30 fee.

If you need assistance with an Arizona water 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 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 State of Arizona.