Westwood Ranches Legal Access Road & Lot Boundary Line Easements

Transcription

1 Westwood Ranches Legal Access Road & Lot Boundary Line Easements June 17, And some liability considerations all WWR lot owners should be aware of - This paper discusses: A white paper by Ken Vlach The Right-of-Way Easements GRANTED TO THE PUBLIC on: o All of the Legal Access Road Easements across the ranch (see ranch survey maps or legal access roadway map) o Access Road & Utility Easements on the four boundary lines on all WWR lots, as identified in WWR property survey maps granted by First American Title The specific Addendum: The Exhibit-E Road Maintenance Easements granted by the State of AZ and Diamond 7 Ranch LLC to the Westwood Ranch Owners Road Maintenance Association (WWROA), with mandatory annual assessments This paper will also discuss the unique implications of the WWR Co-op adopted road sections. Co-op road maintenance is based upon contributor density, and voluntary contributions The final section discusses personal liability for owners, and if there is insurance coverage for roadwork done by volunteers As Treasurer of the WWROA I frequently get asked questions about ranch easements, road maintenance and volunteer work. Many owners did not realize that their road was not covered by the WWROA Road Maintenance and Easement Obligation (REMO) contract with the State of AZ. They subsequently learned their road must be privately maintained by themselves and the other owners that share that easement. But First, the Big Disclaimer: I am not a Lawyer, a Licensed Realtor or a Licensed Insurance Agent. However, I did consult with all of these professionals in preparing this white paper. All information provided here represents my laymen s interpretation of the research I conducted. If you become involved in any dispute or argument on any of the topics discussed in this paper, consult with a licensed professional. Page 1 of 7

2 Opening Statement on Easements: Who has it, and what is a Right-of-Way Easement? What is the definition: Legal Dictionary June 17, 2017 There are different types of Easements. The generic one that applies to our ranch is the Right of Way & Utility Easement: An easement is a right given to another person or entity to trespass upon land that the person or entity does not own. For example, Easements are used for roads, or given to utility companies for the right to bury cables or access utility lines. Landlocked home owners sometimes have an easement to cross the land of another to reach their home. Easements run with the land. It is important to look for easements in public records, especially if an owner or prospective buyer plans to install a structure. A property owner cannot build on top of an easement. On a further note: I was informed that a Certificate of Occupancy application submitted to Coconino County will be problematic if any structure is built on a property s easement. A Right-of-Way Easement: This is a specific type of easement that allows another person to travel or pass through your land. The most common form of right-of-way easement is a road or path through your land, or along your property line. The term Right-of-Way also refers to a preference of one of two vehicles, or between a motor vehicle and a pedestrian, asserting the rite of passage at the same place and time. It is not an absolute rite, however, since the possessor(s) of the right-of-way are not relieved from the duty of exercising due care for her own safety and that of others. This is important as it relates to auto accidents on our ranch roads. Who has been granted the WWR Right-of-Way Easements? In general, WWR has a 60ft wide Access Road Right-of-Way Easement on the 4 lot boundary lines of all properties on the ranch (60ft wide = +/- 30ft on each side of the property line). This boundary line easement is intended to allow neighboring property owners to reach their property and not be landlocked. This easement is exclusively for an access road and/or utilities, and can only be used for that specific reason. When a lot boarders state trust land the 'right-of-way' easement is on the property owner's side only. Easements do not extend onto state trust land. Page 2 of 7

3 There is also a Right of Way Easement granted to the Public (at large) on all designated Legal Access roads on the ranch (60ft wide = +/- 30ft from the center line of the road.). These Easements are granted to the Public by First American Title and are documented in an Owner s Title Insurance Policy and lot survey maps. Owners still maintain control over use of the property, as long as the easement rights are not violated. Unless otherwise specified, it is the owner s of the properties on the legal access road who share responsibility for road maintenance. In a 2011 court case, a lot owner sued other owners on the road who had refused to contribute towards necessary repairs. o Ref: Freeman v Sorchych, 1/13/2011, Az Court of Appeals Division states that holders sharing use of a common easement must equitability contribute to the cost necessary to maintain and repair the Easement o Given that a professionally licensed contractor was used, the cost-of-repairs were considered validated, and the non-contributing owners were ordered by the court to make a fair share payment The WWR Co-op offers a potentially cost effective alternative to individually funded road maintenance. By pooling the voluntary annual contributions from multiple users of a road easement, the Co-op can undertake a road maintenance program for any road section the Board votes to adopt. For the Co-op to adopt a road section, the road must 1 st be in good enough shape to be brought into a maintainable condition at a reasonable cost. 2 nd, sufficient contributing members must be maintained to cover the estimated annual maintenance costs. There are favorable liability considerations working with the Co-op vs. doing private roadwork, and is discussed later in paper. The WWROA has a specific Right-of-Way Easement for only Exhibit-E Roads on the ranch. These Rights were granted by the State of AZ, and Diamond 7 Ranch LLC. This Exhibit-E Road Easement allows the WWROA to perform all tasks necessary* to maintain these roads for the Public at Large. Tasks include grading, ditching, repairs, clearing trees or other actions deemed necessary by a licensed contractor. To assure continued support for this 60ft Right of Way Authority, the State of AZ authorized that mandatory annual assessments be written into the owner s real-estate closing documentation and also in the State s REMO contract with the WWR developer. *This unique authority has been reviewed and verified by legal counsel for the WWROA. Phil Elliott (Elliott Excavating) is a licensed, bonded and insured contractor who performs annual road maintenance on the WWR legal access roadway network for both the WWRCo-op and the WWROA. Phil must deal with many different types of Page 3 of 7

4 road repair issues including the need for larger or deeper ditches, a new low water crossing or the need to pull dirt from the sides to fill ruts, etc. Preserving the 60ft wide access road right-of-way easement (+/- 30' from the roadway center line) is a road maintenance necessity, and a business imperative for the Exhibit-E roadway network. The 60ft wide easement corridor also provides room for the ranch's free range cattle to safely move to the side of the road when a vehicle approaches. Lot owners should avoid installing structures or fences inside of the 60ft easement. This can artificially restrict or constrain future roadwork initiatives by a licensed contractor deemed necessary to improve, stabilize or enlarge the roadway. If a fence has been installed within the easement, it may become necessary to have it relocated to a minimum of 30' from the center line of the road. The owner would receive a letter from the WWROA board, and only if necessary, from the attorneys for the WWROA describing the necessary corrective action. A Special Note: The ARCO pipeline has a +/- 45ft = 90ft easement. And some sections of Cable Rd East have a 15ft easement embedded within the WWROA easement, which can, and does, restrict roadwork. A special Blue Stake construction permit is needed to perform roadwork in sections of Cable Rd and the ARCO pipeline. However, the exception to the 60ft rule is unique on the ranch, and quite rare. Where is the Easement documents filed? The general Road Easement documentation is found in your Title Insurance paperwork. The documents include all lot boundary line easements and all legal access road easements. Refer to the Results of Survey section in your documentation and you will find: KNOW ALL MEN BY THESE PRESENTS ---etc, etc.----hereby dedicates these easements to the public for their use as roadways and utilities. Additionally, each individual survey shows the notation: 60ft access road right-of-way. These easements are not on file at the Coconino County Recorder s Office. Your closing documents, and your survey provides the only record of the easements. Page 4 of 7

5 WWROA right-of-way easements are all on file with Coconino County Recorder s Office. Search records for Easements, Grantor: AZ State Land Commissioner and Diamond 7 Ranches LLC, Grantee: Westwood Ranches Phase VI Owners Road Maintenance Association. This example search results is Easement # Documentation of the 60ft easement can be found in the Plat map package associated with each of the 9 phases of development on the ranch. These survey maps would have been received at closing, and are also available for viewing via wwroa.com. The 60ft roadway easement is described in various manners, depending on the specific plat map package. Here are 4 examples of what to look for: See notation from 'Centerline of Existing Ranch Dirt Road' in examples 1 & 3. 1) 2) 3) Page 5 of 7

6 4) What are some of your rights and liability implications of a Right-of-Way Easement across your property? Disclaimer: The following are some common ranch rumors, and subsequent facts I have uncovered in my research with realtors, lawyers and insurance agents. Again, consult a licensed professional if you become involved in the type of issues covered in this white paper. 1) Personal Liability as an Association member: If you are a Member of an Association, and if there is a lawsuit which attempts to make a casual relationship to the road s condition, the WWR Co-op and WWROA provide liability insurance coverage for its members. This is false. o Both organizations carry liability insurance against the LLC, and the voluntary Board of Directors as defined in their AZ corporate filing. What is true is that for the roads they maintain, so long as both Organizations use a licensed, bonded and insured contractor for road maintenance, the Contractor and the Organization would most likely be the primary targets of a property or personal injury lawsuit. An important note: If either Organization utilized the services of a non-licensed contractor, they may not be covered in the event of a lawsuit, and would most likely lose their insurance coverage. The board members themselves may face legal action. 2) Volunteer roadwork for the Organizations: If you do volunteer roadwork for either Organization, you do have injury coverage. This is false. Page 6 of 7

7 o Neither Organization on the ranch has volunteer worker or employee worker liability or injury insurance. Nor is there any worker s comp insurance. Both insurance companies are very specific that the Organizations should not organize or sponsor volunteer roadwork. o Liability as a non-association member maintaining their own road: If you maintain a legal access road running thru your property, you could be personally liable for the section of road on your property. This is true o If a property owner maintains their own road, then their homeowners insurance & liability umbrella would be the most likely target of a personal injury or property damage lawsuit. If that lot owner utilized the services of a licensed and bonded contractor, it could significantly alter the situation. But if you elect to hire an unlicensed contractor, you would need to consult with your attorney to determine if there is any co-liability ownership. 3) Privately initiated road maintenance on a WWROA Exhibit-E Road or a WWRCo-op Adopted Road: Anyone can perform road maintenance at their own expense on any legal access road on the ranch, regardless if it is maintained by an Organization. This is true o However, three items are noteworthy: a) Both organizations request that you coordinate your efforts thru the Board of Directors or thru the road contractor. b) Recognize that neither Organization will accept injury or property damage liability for the work you have performed. c) Neither Organization can pay you for the work you performed. This is because that would constitute hiring you as an unlicensed sub-contractor and violate Board policy and insurance requirements. A possible exception to this would be for emergency road repairs, involving a serious road safety issue to the public -- and a licensed contractor is not available. The board could request temporary insurance coverage to resolve a specific safety issue. KV 6/17/2017 Page 7 of 7