Action for failure to comply with duty of holder
- • recovery of costs
- • arbitration
(1) If any holder of an interest in an easement fails to maintain the easement contrary to an agreement or contrary to the maintenance provisions of a recorded instrument creating the easement or, in the absence of an agreement or recorded instrument imposing maintenance obligations, fails after demand in writing to pay the holder’s proportion of the cost as indicated in ORS 105.175 (Easement to be kept in repair) (3) and (4), a civil action for money damages or specific performance or contribution may be brought against that person in a court of competent jurisdiction by one or more of the other holders of an interest in the easement, either jointly or severally. In any such civil action, the court may order such equitable relief as may be just in the circumstances. Nothing in ORS 105.170 (Definitions for ORS 105.170 to 105.185) to 105.185 (Application of ORS 105.170 to 105.185) shall impose a maintenance obligation on the holder of an interest in an easement based on the maintenance provisions in an instrument creating the easement if such holder is not a party to such instrument, whether the instrument is recorded or not, after such holder ceases to use the easement.
(2) The prevailing party shall recover all court costs, arbitration fees and attorney fees.
(3) Any holder of an interest in the 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 in accordance with ORS 36.600 (Definitions) to 36.740 (Relationship to electronic signatures in Global and National Commerce Act). The application may be made before, during or after performance of the maintenance work. [1989 c.660 §5; 1991 c.49 §3; 2003 c.598 §34]
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