Barto sole sponsor of easement vendetta bill
Freeman v. Sorchych = HB 2154
By Linda Bentley | April 15, 2010
CAVE CREEK – In 2005, Gerald Freeman, along with his wife, filed a complaint against his neighbor Donald Sorchych, who also happens to be the publisher/editor of Sonoran News, in an attempt to have Sorchych share a portion of what grew to be an approximately $30,000 expense for improvements to an easement.
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, which applies to a parcel of real estate providing the only method of legal access to their homes, 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,” and said the cited cases did not deal “with the right of one who holds an easement right 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 said the court was sympathetic to the equitable argument made in Freeman’s claim, but Freeman was asking the court to require Sorchych, an unrelated party who owes no contractual or other obligation to plaintiff, “to make substantial contributions for expenditures made for a road situated on real estate owned by a third party based upon the grant of a 1969 easement that grants the parties’ predecessor in interest an access right without any corresponding maintenance obligation.”
Freeman, nonetheless, filed the complaint requesting payment, even though he acknowledged Sorchych never agreed to contribute, despite having discussed the issue.
Ballinger stated, 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.
The following day, Ballinger addressed Freeman’s unjust enrichment claim against Sorchych and said, “In order for plaintiffs to be able to recover on their unjust enrichment claim, they must demonstrate, among other things, both that they conferred a benefit on defendant to their detriment and that it would be unjust to permit defendant to retain this benefit.”
Ballinger stated, “It is not sufficient to simply establish that plaintiffs’ actions have benefited defendant,” adding, “At trial plaintiff Gerald 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. This uncontroverted evidence establishes that plaintiffs cannot satisfy a requisite to recovery under an unjust enrichment theory. They cannot establish that they expended funds to their detriment for defendant’s benefit. To the contrary, they expended funds for work needed to benefit (read provide access) to their property.”
Ballinger found in Sorchych’s favor on the unjust enrichment claim and subsequently awarded Sorchych costs and attorney’s fees.
Unhappy with Ballinger’s order, Freeman filed an appeal, which is still pending, with a request for oral arguments, before the Arizona Court of Appeals.
However, in the interim, Freeman found himself an ally in Rep. Nancy Barto, R-Dist. 7, who, as the sole sponsor, introduced HB 2154:
Easements; proportionate liability for maintenance, which would force easement holders to pay for a share of road maintenance, without requiring them to have any sort of contractual agreement, and states:
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.
. 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: “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. But we’re still working to ensure there are no unintended consequences. Stay tuned.”
Other Creekers who have been involved in similar disputes, resulting in lengthy and expensive legal battles, said if HB 2154 is passed into law, it will ensure one thing – the imposition of non-consensual obligations will all end up in court.