Real Property Lien for noncompliance with CC&Rs & State Statutes

[Shadowbunny]

Arizona:

ARS 45-205 allows for a lien to be placed against real property when a property owner fails to maintain "a canal, flume or other means for carrying water." I live in a neighborhood that has flood irrigation on a "neighborhood system." Neighborhood systems are such that once the water leaves the head canal, it is up to the property owners to maintain the irrigation ditches that transport water to all of the other properties. There is no agency that manages disputes between neighbors when issues (like ditch maintenance) arise - it's left to the neighbors to work it out.

That said, we have two neighbors that are repeatedly in violation of the subdivision's CC&Rs and the state statute in regards to ditch maintenance. Their lack of maintenance on their respective ditches causes restriction of water flow for those below, and causes flooding to those above. Both the CC&R's and the state statute mention filing a lien against the real property when someone else has to pay for maintenance/repairs. However, both documents are silent as to the type of lien.

Questions:

Would it be appropriate to file 2 separate liens (one based off of CC&Rs, the other based off of ARS 45-205)?
Would a lien be filed for each separate violation?
Would they be mechanic's lien, or must we go court to get a judgment?


Inquiring minds want to know....


https://www.azleg.gov/ars/45/00205.htm

 

[adjusterjack]

According to the statute the answers are:
No.
No.
I don't think a court judgment is required.

I don't know what your CC&Rs say but the statute makes it clear that:

1 - You give the offender 6 days written notice that, unless repairs are done, you will do them.
2 - Once you have completed and paid for the repairs you have 30 days to file the itemized lien with the county recorder.
3 - When you get paid you have 30 days to record the lien release.

Now quote the section of your CC&Rs that addresses irrigation liens.

 

[Shadowbunny]

Thanks, Jack.

The CC&R's relevant para states "The owners of all lots shall keep the same clean of weeds and at all times, if any owners fail to keep his or her lot clean of weeds and trash, the subdividers may cause the same to be cleaned twice yearly, if necessary, and charge the cost of same to the extent of not more than $100 annually to the owner of such lot. Recordation of a notice of such charge in the office of the County Recorder of Maricopa County, Arizona, shall constitute a lien against said lot, which lien shall continue until released of record."

My confusion is this: what type of lien? And the fact that the CC&Rs state that the "SUBDIVIDERS may cause the same to be cleaned" (which I just noticed as I was typing this out) does this mean that we, the neighbors, can't use this to get the unwashed masses to clean up their ditches?

 

[Taxing Matters]

My confusion is this: what type of lien?

You are looking at two different potential liens. One is the statutory lien under ARS 45-205 that results when any "user" of the water repairs the canal after having given notice. The other arises from the failure to meet the HOA CC&Rs and is a HOA lien. That latter lien would have to be done by the HOA (the subdividers were likely the predecessors to the HOA).

 

[adjusterjack]

My confusion is this: what type of lien?

I'm not sure what you are asking. You originally asked if it was a mechanic's lien. It's not. It's a specific lien addressed by the irrigation ditch statute. When you create the document you can title it Statutory Lien or you can title it Irrigation Ditch Lien. What counts will be the purpose and description in the body of the document.

When you go to record the lien you will be given a choice of types. Go to the following Maricopa County Recorder Page:

https://recorder.maricopa.gov/recdocdata/

Click on the document code space and you'll see a long list.

One of the choices is Liens-Govt/non-govt & general liens. That's the "type" you choose for recording purposes, not necessarily the title of your lien.

You can probably find real property lien forms on the internet and modify them to suit your purposes.

But you aren't there yet.

And the fact that the CC&Rs state that the "SUBDIVIDERS may cause the same to be cleaned" (which I just noticed as I was typing this out) does this mean that we, the neighbors, can't use this to get the unwashed masses to clean up their ditches?

The HOA would have to pay for the repairs, bill the responsible owners, then file the lien if they didn't get paid.

If you can't get the HOA to do it, you or you and your effected neighbors will have to do it and then file the lien under the statute.

Are you and your neighbors willing to follow the statute, pay for the repairs and then seek reimbursement? Keep in mind that a lien doesn't mean you get paid right now. A lien means you get paid someday, perhaps when the owner wants to sell or refinance or do something that requires a background check. Even with the lien on file you might still have to sue and get a judgment against the offenders so that you can garnish wages or levy bank accounts.

 

[Shadowbunny]

Thanks, Jack; that's quite helpful.

And Taxing, we don't have an HOA (old neighborhood, developed in the late 60s), so are trying to figure this out. Of course, I'm hoping that a friendly chat "hey, neighbor -- your 3-foot high weeds is choking the irrigation and causing water flow issues" will take care of things. Considering that the "irrigation war" has resulted in violence in our 'hood in years past I'm not too optimistic.*

I fully anticipate that IF they don't clean the ditches themselves, that we'll pay to have it done then present them with the bill. Filing a lien is our last-resort option, with the understanding that we most likely wouldn't be reimbursed until the home is sold.

*One neighbor hit another neighbor in the face with a shovel over an irrigation dispute. Lots of blood, but police weren't called. It's a bit of the Wild West in our otherwise-civilized neighborhood when it comes to irrigation.

 

[adjusterjack]

I had a house decades ago in East Phoenix with irrigation. Same thing started happening. One neighbor at a time neglected the ditch until the domino effect made it impossible to maintain. Eventually I opted out and put in a sprinkler system.