Barto’s bill attempts to morph holdership rights into ownership rights

By Linda Bentley | April 21, 2010

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‘I wouldn’t necessarily assume that every law that’s been in place in another state, even California, since 1939, is necessarily evil’

nancy bartoPHOENIX – Rep. Nancy Barto, R-Dist. 7, has been attempting to defend HB 2154, Easements; proportionate liability for maintenance, which she, as the sole sponsor, introduced on behalf of Gerald Freeman, who, in 2005, along with his wife, filed a complaint against his neighbor Donald Sorchych, who also happens to be the publisher/editor of Sonoran News.

The crux of Freeman’s lawsuit was an attempt to get Sorchych to pay a portion of what grew to be an approximately $30,000 expense for improvements to an easement on property owned by a third party.

Sorchych purchased the property with a primitive road and prefers to keep it that way. He either performs road maintenance himself or hires others as necessary.

There’s never been an easement maintenance agreement and Sorchych doesn’t wish to be party to one. 

The easement is described as “… an easement for an existing roadway as it existed on Oct. 2, 1969 …”

The case was assigned to an arbitrator and Sorchych was the prevailing party.

Freeman appealed the arbitrator’s decision and lost again.

In his March 24, 2009 minute entry, Maricopa County Superior Court Judge Eddward Ballinger, Jr. stated, “None of the cases cited by the parties provide meaningful guidance for the current issue,” noting the cited cases did not deal “with the right of one who holds an easement to compel a similar holder to pay for improvements or maintenance when there is no contribution or maintenance obligation set forth in the granting instrument.”

Ballinger went on to say, even if the court were to follow the holdings of other jurisdictions, those holdings were not at issue in this case.

He said “[T]he cases cited by the parties point to the fact that if the court were to adopt plaintiffs’ position, any easement holder could find himself/herself subject to a wide variety of novel contribution claims.”

Ballinger also stated, “[I]f there is to be an extension of Arizona law that creates new, non-consensual, obligations on those who hold common easement rights, legislative action is required,” and repeatedly stated he does not legislate from the bench.

In dealing with Freeman’s unjust enrichment claim against Sorchych, Ballinger stated, “It is not sufficient to simply establish that plaintiffs’ actions have benefited defendant,” adding, “At trial … Freeman testified that the work performed on the roadway in question was required to maintain access to his property and that the costs incurred for roadway repair would have been exactly the same without reference to any use by defendant.”

Ballinger subsequently awarded Sorchych his costs and attorney’s fees.

Freeman filed an appeal, which is still pending with a request for oral arguments, in the Arizona Court of Appeals.

HB 2154 would add the following language to Arizona Revised Statutes:

A.  The holder of any roadway easement that is in the nature of a private right-of-way and the owner of the land to which the easement is attached shall maintain the easement.

B.  An easement that is held by more than one person or that is attached to parcels of land under different ownership shall be maintained as provided in any agreement among the persons.  If there is no agreement:
1.  The reasonable cost of maintenance, including snow plowing to maintain access, shall be shared proportionately among the holders of the easement right according to the use made of the easement by each holder.
2.  For an easement held by three or more persons, the maintenance shall be approved by a majority of the easement holders who use the easement.

C.  Any holder of an easement or any owner of land to which the easement is attached may apply to any court in the county in which the easement is located and that has jurisdiction over the amount in controversy for the appointment of an impartial arbitrator to apportion the cost.  The application may be made before, during or after performance of the maintenance work.  If the arbitration award is not accepted by all of the easement holders and landowners, the court may enter a judgment determining the proportionate liability of the parties.  The judgment may be enforced as other money judgments by any party against any other party to the action.

D.  This section does not apply to any easement held by any agency or department of this state, any political subdivision of this state, any public service corporation or any private utility provider.

On April 13, after receiving some negative feedback about the bill, Barto responded with a post on her Facebook page saying: “A similar law has been in place in California since 1939 and has worked fine, though, and is likely to help rather than hurt rural areas.”

On April 16, Carefree resident John Traynor sent Barto an e-mail saying, “Thank God this is not California! We don’t need that kind of government bullying in Arizona. I don’t know why you chose to enter this barn, but I strongly believe you made a very poor choice this time. The block bully should never get support from government.”

Barto responded, “This bill is getting a bad rap … I wouldn’t necessarily assume that every law that’s been in place in another state, even California, since 1939, is necessarily evil.

“I’m still working on the language, by the way, because the realtors have raised concerns at the last minute – after it went through the House with 43 votes – not a simple majority.

“Some of their concerns may be legitimate but if we can address them, this will help a lot of people – not just resolve one neighbor dispute – which has been claimed.”

Barto concluded by saying the bill bears closer scrutiny, “rather than an immediate negative reaction.”

Sonoran News located the California law, which Barto claims has been working fine since 1939.

California Code 845 (a) states: “The owner of any easement in the nature of a private right-of-way, or any land to which any such easement is attached, shall maintain it in repair.”

The California statute goes on to discuss if the easement is owned by more than one person, or attached to parcels of land under different ownership, how the “cost of maintaining it in repair shall be shared by each owner of the easement or the owners of the parcels of land, as the case may be.”

Barto changed “owner of any easement” to “holder of any roadway easement” and “shall maintain it in repair” to “shall maintain the easement.”

The California law states, “In the absence of an agreement, the cost shall be shared proportionately to the use made of the easement by each owner.”

Whereas, Barto’s law requires “reasonable cost of maintenance” shall be “shared proportionately among the holders of the easement right according to the use made of the easement by each holder.”

There’s a big difference between the owner of an easement and a holder of easement rights.

Barto’s claim that a similar law has been working fine in California since 1939 is disingenuous and is giving her bill a bad rap for good reasons.

In reality, HB 2154 would land every demand upon easement holders to pay for "maintenance" imposed by another easement holder in a lengthy and costly court battle.