Basics of Private Road Maintenance Agreements
Private Road Maintenance Agreements represent a contract between all of the shared private road owners. Their purpose is to address road maintenance, including snow removal, repairs , resurfacing and major upgrades. A Road Maintenance Agreement maximizes property values, provides a level playing field to minimize conflict among road owners, and minimizes the need for costly future litigation.
Key Features of a Road Maintenance Agreement
When assessing existing private road agreements or developing new agreements, the following are key areas to be examined.
Allocation of Responsibility and Cost: An important element of any maintenance agreement is the allocation of responsibility for costs among the parties. While a condominium association or neighborhood association provides a convenient vehicle for allocating costs, the allocation can be modified by agreement among the unit owners. One unconventional but creative approach is to allocate the cost in proportion to the amount of land the unit owner controls. In a wooded community, for example, a large wooded lot or a common wood preserve may have relatively low property value. By contrast, in a non-wooded location, the value of property may be in the improvement and development. The cost may thus be allocated on the basis of improvements, improvements plus land, or land alone. In the case of a common ownership community with commonly held or limited common elements, an allocation that is different from the allocation required by the declaration, bylaws or renter’s association document may be appropriate, as long as it is fair and has been adopted in accordance with the requirements of the governing documents. Cost allocations may also vary based on maintenance type and frequency. The frequency of maintenance activities should be closely related to the frequency of use. An unused road should not require regular maintenance, for example, while a new road may require maintenance to encourage full establishment of trees, shrubs and other vegetation. Finally, cost allocation can also vary if the area is in transition. If residents have recently formed the association, for example, the initial group may agree to contribute more than its fair share until new residents can be encouraged to join and pay their proportionate share. In this case, equity and fairness dictate that future residents pay their fair share as well. Maintenance Requirements: A well-designed maintenance agreement allocates the burden of maintenance in a manner that fairly reflects the needs and uses of the roadway and the impacted parties. For example, if one owner alone uses a road at night, that owner might be required to undertake periodic clearing of a timber border that protects the road from dust and road salt damage. If another owner alone uses the road for access to agricultural fields, that owner might take on the obligation of keeping the road level. Maintenance schedules should reflect the realities of climate. Some areas may require snow removal in winter while other areas do not require this service. Where there is a heavy ice-load on roads in the spring, maintenance schedules should account for this potential condition by allowing for an extended period during which maintenance efforts are directed to soil stabilization.
Sample Road Maintenance Agreement Provisions
Here are a couple of "sample" provisions one tend to see in private road maintenance agreements:
Indemnification and Liability: "The parties acknowledge and agree that the Road Maintenance Committee shall have no duty or responsibility to maintain, repair, or otherwise care for the interior and/ or exterior surfaces of the Private Road(s), said duties and responsibilities being borne entirely by Unit Owners as provided for herein. UNIT OWNER(S) AGREE(S) TO RELEASE AND HOLD HARMLESS THE ROAD MAINTENANCE COMMITTEE, ROAD COMMITTEE, AND INSTALLING PARTIES FROM ANY LIABILITY TO UNIT OWNER(S) AND/OR HIS/HER/FAMILY, GUESTS, VISITORS, OR OTHER THIRD PERSONS WITH REGARD TO THE INTERIOR AND/OR EXTERIOR SURFACES OF THE PRIVATE ROAD(S).
Dispute Resolution Procedure: Any dispute arising between the Unit Owners, the Property Owners Association, the Road Maintenance Committee and/ or the Installing Parties regarding this Agreement or any action, expense, or failure related to the Private Road(s) shall be submitted in writing to the Property Owners Association Board of Directors for their decision. If the dispute is not settled at the Board level, it shall be presented to the general membership of the Association prior to any attempt to invoke judicial process, and any attempt to invoke judicial process shall not occur within thirty days after the said presentation to the general membership. Should the dispute be resolved in favor of the Road Maintenance Committee, the costs and expenses incurred by the Committee in assessing the situation and presenting the dispute to the Board of Directors and/ or the general membership will be reimbursed by the Unit Owners who, at the time of the dispute, make up the Road Maintenance Committee. In the event of disagreement about the amount of reimbursement, an independent third party surveyor shall be brought in to determine the responsibility of the parties to pay for the disputed expenses. The surveyor’s decision shall be final and binding. No party shall use the judicial process to resolve the situation for a period of thirty days after the presentation of the dispute to the Road Maintenance Committee Board and/ or to the general membership of the Association.
Legal Considerations for Road Use and Maintenance Agreements
Road maintenance agreements are typically private contracts between adjoining property owners, however, applicable laws and regulations may affect their enforceability. To ensure a road maintenance agreement is legally sound:
Understand Applicable Law:
Road maintenance agreements for private roads in some jurisdictions are regulated by statute (see §§ 40-2-23, 40-2-28, and 44-5-402.2, C.R.S. (2016); 32-1-203(1)(d), A.R.S. (2016); 23 Vt. Stat. Ann. § 3252 (2016)). Even if not directly applicable, the provisions of such statutes can be instructive. Certain requirements imposed by the statutes can lend legal support to the validity of any road maintenance agreement, though parties should take great care to comply with all requirements. Road maintenance associations created under statute may provide limited protection to property owners who otherwise may suffer personal liability for injuries on the road. Though such statutes may not apply to your circumstance, a broad protection may be afforded under state laws aimed at protecting homeowners and homeowners’ associations from liability for negligence (see C.R.S. §§ 13-21-115(1) & (3) (2016), A.R.S. §§ 33-1804.B & 33-1805 (2016), A.R.S.§§ 33-1816.B & C (2016), and 25 Vt. Stat. Ann. §§ 1402(b) & (c) (2016)).
Engage Legal Help:
It’s advisable to engage legal and tax counsel before entering into any road maintenance agreement since general legal guidelines can only assume risks undertaken in typical agreements. Specific issues may require tailored solutions. Considerations include: Understand Common Law: Recognize that even where statutes are not dispositive of the issue, the common law provides guidance on ambiguous terms since courts and judges rely on case law decisions for interpretation of contract language and application to specific facts. Internal Governance: Placing road maintenance and repair issues on the agenda during meetings is a common tactic to ensure the associates are engaged and making decisions in a timely manner. Having a reserve fund and assessing dues based on square footage of lots rather than number of lots minimizes disputes over allocation of costs.
Private Road Maintenance Agreement Negotiation
When entering into private road maintenance agreements, the parties should take the time to ensure that they agree on all of the provisions set forth in the agreement. As with most agreements, the goal should be a meeting of the minds as to all material provisions. Following are some tips and suggestions for doing so: In addition to the above, it is important to maintain clear lines of communication between the parties . Questions should be asked of the other signing party and if any questions remain, they should be documented. Documentation is the best way to prove what was and was not agreed to during the course of negotiations should a disagreement arise after the agreement is closed into record.
Templates for Private Road Maintenance Agreements
One option for creating an effective and legally sound private road maintenance agreement is to make use of legal templates for your specific state, jurisdiction, or county. These templates are often available from one of the following sources:
Professional organizations focused on road management (such as the Association of County Road Supervisors) may have shared templates on their websites.
State department of transportation or other government agencies may provide sample agreements on their websites.
Lawyers’ websites are another potential source.
Some legal websites like FindLaw.com provide access to free legal documents and templates.
Pros and Cons of Templates
Templates for road maintenance agreements can be a good way of getting a jump on the writing process because they give you a basic organizational framework and even enough information to help you hit the ground running. They are also a big timesaver because they allow you to skip some of the more onerous research tasks that involve looking up local laws and regulations, statewide statutes, and even reviewing sample legal decisions or cases for similar issues and situations. For many people, reviewing and absorbing all this information would be an overwhelming and time-consuming job.
One major disadvantage of legal templates is that they are often never a perfect fit for any real-life situation. This makes it necessary to make at least moderate modifications when using a template. You or your attorney may find it necessary to alter the document, sometimes even to the point of transforming it completely so that it is no longer recognizable as a template. Unfortunately, this defeats one of the major advantages of using a template in the first place while at the same time jettisoning several public resources in the process.
Another potential drawback of using templates is that they do not provide any guidance about the various sections and what they are expected to include or explain. Many people find it easier to write a document when provided with helpful hints or other explanations about each section, including a brief breakdown of the purpose of each section.
If you’re planning to create a road maintenance agreement, you are strongly advised to consult with a legal professional to avoid the wrong choice of legal template or to fix any glaring deficiencies that could easily (and preventably) result in litigation down the road.
Advantages of a Private Road Maintenance Agreement
Harmonious relationships between neighbors often hinge on the fact that these neighbors rely on private roads to access their homes and businesses. The State’s right of way often ends at one end of a private road. Because this road is not maintained by the local municipality or the State’s DOT, it is critical that those who rely on the road set an agreement as to how the road will be maintained.
A well-crafted private road maintenance agreement will go a long way in creating harmony among the road-users and ensuring continuity in the maintenance of the road. The following are some of the benefits of implementing a well-structured private road maintenance agreement.
The first benefit is that a well-structured private road maintenance agreement will provide clarity as to how the road is maintained. In a State where most roads are maintained by local municipalities or the State’s Department of Transportation, the last thing road-users likely want to deal with is the maintenance of a private road. Consequently , a private road maintenance agreement will provide clarity to road-users as to what is expected under the agreement in order to ensure road safety and ease of travel.
Another benefit is that a private road maintenance agreement will likely help minimize disputes between road-users. Roads are not inexpensive to maintain, and ensuring that all road-users are doing their fair share in keeping the private road well-kept will help minimize disputes between neighbors.
Another benefit is that a well-structured private road maintenance agreement can help ensure compliance with local ordinance and State law. Most towns have local ordinances that require road-owners to maintain the road in accordance with certain standards. Consequently, having a private road maintenance agreement will help ensure compliance with both local ordinances and State law.
Another benefit is that if road-users are not following the terms of the private road maintenance agreement, then the other road-users can hold them accountable. A well-crafted private road maintenance agreement will provide each road-user a remedy if another road-user is not fulfilling their obligations under the agreement. This can include demanding that the road-user perform their obligations or compensating other road-users for their failure to comply with the terms of the agreement.
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