Cochise County Attorney Brian McIntyre wants a judge to void an agreement that allows a real estate developer to charge property owners near State Route 90 and State Route 82 an annual maintenance fee for road work that has not been performed as promised “for many years.”
The legal action filed Aug. 7 notes Cochise County, through its Flood Control District, currently owns a 104-acre parcel which was once part of 5,344 acres of the historic Babacomari Land Grant purchased in 2004 by the James and Jennifer Douglass Family Revocable Trust.
Also in 2004, James P. Douglass as trustee of the Douglass Trust recorded a Maintenance Agreement For Access Roads (RMA) as a perpetual covenant against the 5,344 acres.
The Douglass Trust property was developed over the years into 277 parcels “through a series of illegal lot splits, and subsequent splits and conveyances,” according to the lawsuit. The RMA is attached to the land -regardless of any future splits, conveyances, or ownership changes- and requires all property owners to pay $150 per year per parcel or home.
That is a problem, the county’s lawsuit alleges, because the trust has for years failed to perform the RMA work and “have no intention of doing so.” In addition, it appears many current parcel owners have stopped paying the RMA fee or were never billed for the fee.
“The RMA therefore has been abandoned, no longer serves a purpose, and as a practical matter is unmanageable now that the Babacomari Property has been split into 277 separate parcels,” the lawsuit argues. “Yet as a recorded document, the RMA is a cloud on the title to Plaintiffs’ properties that are purportedly subject to the RMA – and, unless the matter is addressed, will remain a cloud in perpetuity.”
The lawsuit asks a judge with the Cochise County Superior Court to issue an order voiding the RMA on the grounds of abandonment, frustration of purpose, impracticality, and breach of contract. If the county’s request is granted, then documents will be filed with the Cochise County Recorder’s Office showing the RMA is no longer in effect against any of the parcels.
Ernest and Susan Turley have joined the county’s lawsuit based on their ownership of eight acres and a house covered by the Douglass Trust RMA. Susan Turley is an attorney and is representing the couple’s interests in the case.
James Douglass, as trustee for the family trust, will have 20 days to file a formal answer once the lawsuit is formally served. He is also named as an individual defendant.
The property sold to the Douglass Trust in 2004 by Ben Brophy of the Babacomari Ranch Company LLP has a rich history. For more information check out www.babacomariranch.com