BILL REQ. #: H-0921.2
| State of Washington | 63rd Legislature | 2013 Regular Session |
READ FIRST TIME 02/15/13.
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 road for ingress and egress, 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. However, nothing in this section
prohibits agreements that allow maintenance obligations, including
costs, to be allocated to fewer than all holders of an interest in an
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.
(b) An agreement under (a) of this subsection may 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 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, the reasonable
and necessary 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 or excessive 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, in determining proportionate use and
settling conflicts the following factors may be considered: (i) The
frequency of use by the holders; (ii) the scope of use by the holders,
which may be determined by dividing the distance of total usage of all
holders into the distance of total usage of each holder; and (iii) 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 regular and
routine 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
usage of all holders into the 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; or
(ii) After receiving a demand in writing sent certified mail,
return receipt requested, the holder fails to pay, within sixty days of
the date of the written demand, 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 reasonable 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 subsections (2)
and (3) of this section, this chapter applies to all easements existing
on or created after January 1, 2014.
(2) This chapter does not apply to any entity regulated under
chapter 76.09 RCW or railroad company or affiliate, or any easement or
right-of-way held by any agency or department of the state, any
political subdivision of the state, any public service company as
defined in either RCW 80.04.010 or 81.04.010, or any public or private
utility provider.
(3) Nothing in this chapter authorizes the impairment of a
maintenance agreement existing on or before January 1, 2014.
NEW SECTION. Sec. 5 Sections 1 through 4 of this act constitute
a new chapter in Title
NEW SECTION. Sec. 6 If any provision of this act or its
application to any person or circumstance is held invalid, the
remainder of the act or the application of the provision to other
persons or circumstances is not affected.
NEW SECTION. Sec. 7 This act takes effect January 1, 2014.