BILL REQ. #:  H-0052.2 

Read first time 01/19/11.   Referred to Committee on Judiciary.

     AN ACT Relating to private road maintenance agreements; adding a new chapter to Title 64 RCW; and providing an effective date.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF WASHINGTON:

NEW SECTION.  Sec. 1   The definitions in this section apply throughout this chapter unless the context clearly requires otherwise.
     (1) "Easement" means a nonpossessory interest in the land of another that entitles the holders of an interest in the easement to a private right-of-way, embodying the right to pass across another's land.
     (2) "Holders of an interest in an easement" or "holder" means those with a legal right to use the easement, including the owner of the land across which the easement passes if the owner of the land has the legal right to use the easement.

NEW SECTION.  Sec. 2   (1) The holders of an interest in any easement shall maintain the easement.
     (2)(a) The cost of maintaining the easement must be shared by each holder of an interest in the easement as provided in the terms of any agreement entered into by the parties for that purpose or any recorded instrument creating the easement.
     (b) An agreement under (a) of this subsection must be recorded in the real property records with the county auditor in the county or counties in which the easement is located. A failure to record the agreement does not affect the enforceability of the agreement among the parties to the agreement and any other person with actual notice of the agreement.
     (3)(a) Except as provided in (b) of this subsection, in the absence of an agreement under subsection (2) of this section and in the absence of maintenance provisions in a recorded instrument creating the easement, the cost of maintaining the easement must be shared by each holder of an interest in the easement in proportion to the use made of the easement by each holder.
     (b) Each holder of an interest in an easement is solely responsible for damage caused to the easement because of the holder's negligence or abnormal use. The holder shall repair the damage at his or her own expense.
     (4)(a) Unless inconsistent with an agreement between the holders of an interest in an easement or a recorded instrument creating the easement, in determining proportionate use and settling conflicts the following factors must be considered: (i) The frequency of use by the holders; and (ii) the size and weight of vehicles used by the holders.
     (b) Unless inappropriate, based on the factors contained in (a) of this subsection or other relevant factors, the costs for normal and usual maintenance of the easement and the costs of repair of the easement damaged by natural disasters or other events for which all holders of an interest in the easement are blameless may be shared on the basis of percentages resulting from dividing the distance of total normal usage of all holders into the normal usage distance of each holder.

NEW SECTION.  Sec. 3   (1)(a) A civil action for money damages, specific performance, or contribution may be brought in a court of competent jurisdiction against a holder if:
     (i) The holder fails to maintain the easement according to an agreement;
     (ii) The holder fails to maintain the easement according to the maintenance provisions of a recorded instrument creating the easement; or
     (iii) After receiving a demand in writing, the holder fails to pay the holder's proportion of the cost for maintaining the easement as indicated under section 2 of this act.
     (b) An action under this section may be brought against a holder of an interest in the easement by one or more of the other holders either jointly or severally.
     (2)(a) In an action brought under this section, the court may order any equitable relief that may be just under the circumstances; and
     (b) The court shall award the prevailing party all court costs, arbitration fees, and attorneys' fees.
     (3) Unless the parties are subject to mandatory arbitration under chapter 7.06 RCW, any holder of an interest in an easement may apply to the court of competent jurisdiction where the easement is located and that has jurisdiction over the amount in controversy for the appointment of an impartial arbitrator to apportion the cost, and the matter may be arbitrated as provided in chapter 7.04A RCW. The application may be made before, during, or after performance of the maintenance work.
     (4) Nothing in this chapter imposes a maintenance obligation on the holder of an interest in an easement based on the maintenance provisions in an instrument creating the easement if the holder is not a party to the instrument, whether the instrument is recorded or not, after the holder ceases to use the easement.

NEW SECTION.  Sec. 4   (1) Except as provided in subsection (2) of this section, this chapter applies to all easements existing on or created after January 1, 2012.
     (2) This chapter does not apply to any easement or right-of-way held by any agency or department of the state, any political subdivision of the state, any public service corporation, or any public or private utility provider.

NEW SECTION.  Sec. 5   Sections 1 through 4 of this act constitute a new chapter in Title 64 RCW.

NEW SECTION.  Sec. 6   This act takes effect January 1, 2012.