When multiple property owners share interests in an easement, who must pay for the easement’s maintenance? If the recorded easement describes who is responsible for repairs, maintenance, or improvements, the answer is easy: the recorded easement controls and the owners must respect the easement’s direction. But if the easement is silent as to who bears what costs, the answer isn’t so clear.
The Arizona Court of Appeals addressed this issue in the Freeman v. Sorchych case. In Freeman, two neighbors, the Freemans and the Sorchychs, shared an easement as the sole means of access to their respective homes. Both neighbors used the easement equally. Although the easement provided that both property owners had the right to use the easement, the easement was silent as to who was responsible for maintaining the easement. Due to erosion from rain and other environmental factors, the easement required periodic maintenance and grading.
When the time came to repair the easement, the Freemans requested that the Sorchychs share in the costs – by the time of trial in 2009, the Freemans’ costs totaled $21,657.16. The Sorchychs, however, declined the Freemans’ request and a lawsuit ensued. The trial court ruled that although the Freemans presented an equitable argument for reimbursement, the Sorchychs had no contractual or other obligation to pay for the maintenance and repairs to the shared easement.
The Court of Appeals reversed the trial court and ruled that, even if the easement does not expressly provide for a duty to repair or maintain the easement, the owners of the easement have the shared duty to repair and maintain the easement. Freeman, 226 Ariz. 242 at 250. Consequently, neighbors can compel each other to share the costs for any necessary repair and maintenance costs of a shared easement. Notably, the Freeman decision does not require neighbors to share the costs “fifty/fifty.” Instead, each party’s contribution should be based on an equitable apportionment determined by relevant factors, such as each party’s proportionate use of the easement. Also, although neighbors are required to share the costs to maintain easements, they are not required to share costs to improve easements, e.g., upgrade easement from dirt road to paved road.
Also, in any action concerning an easement dispute, the prevailing party should be entitled to its attorney’s fees pursuant to A.R.S. 12-341.01.
If you or someone you know has questions regarding an easement, or other real estate matter, please call or email today.