Private road maintance agreements

cynandjonJanuary 3, 2010

We have 8 houses on the private gravel road where we are building our house. A neighbor is trying to get a FHA loan and the bank requires a Maintenance agreement. how many of the land owners would have to sign the agreement for it to pass? I would think all of them, am I correct? (this is NOT a development so there is none in place)

thanks in advance for your help


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Time to dig into the situation. First, find out who owns the road. It may be an individual or individuals, in which case there will be one or more easements. It may be commonly owned by the property owners, in which case there should be paperwork documenting the fact. It may be owned by a homeowners association or the equivalent.

If the right to pass over the road is granted by an easement, the easement may contain maintenance language, or it may not. If there isn't any, you are in a gray area, which can easily end up in court.

If a road association or homeowners association owns the road -- or the rights to it -- then the officers of the association need to get a maintenance agreement in place. Depending on how the association is set up, this may take a simple majority vote, or it may take a super-majority.

All the above aside, the party that subdivided the property and developed it should have taken care of this little detail. If they didn't you may find yourself in a bit of a pickle.

FWIW, I just had a discussion with a fellow who has an easement across some property I own. He wanted to know how we were going to maintain it. He was a bit shocked when I told him I wasn't going to maintain it at all or pay anything toward its maintenance, since it did not benefit me. The easement says nothing about maintenance, and I am not about to enter into an agreement to maintain a road that doesn't benefit me.

I also used to own property in a small subdivision similar to what you are describing. I owned lot one and had direct county road access. Lots two through 9 had an easement across my property. There was no maintenance agreement at all.

A couple of the neighbors who owned property near the end of the road tried to get everyone to agree to an equal share road maintenance agreement. Since I didn't need or use the access road, I put up a bit of a fuss and managed to block their efforts. Long story short, they didn't get their road maintenance agreement. When I sold the property some years later, there still wasn't anything in place.

The thing that is important is this. It is imperative when buying property without direct access to a public road that all access issues be checked and verified before signing on the dotted line. That includes maintenance provisions. Doing otherwise is very risky.

Sorry if this is bad news. I hope everything works out OK.

    Bookmark   January 3, 2010 at 5:31PM
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If it's like our little 8-house street, the street itself occupies the first few feet on the front of each lot, so each homeowner owns approximately 1/8th of the street independently. We also have no formal homeowners' association, but rather an informal gathering on an as-needed basis to address concerns that come up. (We typically seem to meet once every three or four years.) Four of the eight homeowners have ties to the construction or building trades, three others are lawyers. So between them, someone always seems to have an 'in' to whatever needs doing.

Last time we had a major expense, we all came to a concensus and split it eight ways, with the one owner who was willing to do the research being the one that got to choose the contractor and make all of the 'little' decisions.

Would we want to enter into a binding legal agreement? I'd have reservations...

    Bookmark   January 3, 2010 at 7:17PM
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Private road maintenance may also be covered by laws and regulation unique to the jurisdiction the road is located in. A lot of different entities could conceivably have a legal iron in the fire, including states, counties, storm water districts, federal conservation agencies, etc., etc.

In the case of the easement across my land that I cited above, the TVA has a federal finger in the pie regarding road maintenance, which is not that uncommon around here. Needless to say, it does not simplify things for the easement holder or the entity maintaining the road.

If there is legal research you can't handle yourself, a dispute, or forced resolution of differences in the cards, the only real solution is to hire a real estate attorney to to take charge of matters.

Mine charges $200 an hour.

    Bookmark   January 3, 2010 at 8:23PM
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We are on a private road and all the neighbors pay equally
for the road maintenance.
The agreement is recorded with the county so that if anyone sells their land or house, the agreement passes to the new owners.

    Bookmark   January 4, 2010 at 11:00AM
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We have an easement in our deed that gives us access to a portion of our neighbors' drive as our entire road frontage is wetland- and we are really lucky that is covers ALMOST everything...power, phone, cable, etc. Neighbors tried to block our access to the electricity on their drive and instead suggested that we run several polls up our field from the road. Now that would be attractive and cost effective!

It also specified that we were to share in the cost of maintenance related to plowing etc, which makes sense. That did not stop the neighbors from sending us the $500 "fall clean up" bill, which was basically leaf removal b/c they are too lazy to get out there and rake a few leaves. You have to put your foot down somewhere...

Long and short of it is, make sure whatever agreement you put together is thorough and leaves nothing open to interpretation. You'd be surprised how many people start to act funny when they have to share a common drive, especially when it comes to $$.

    Bookmark   January 4, 2010 at 11:29AM
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Thanks everyone

    Bookmark   January 4, 2010 at 12:51PM
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Not trying to hi-jack your post, but I have a question.

We live on a dead end dirt road with only 4 houses, we were woundering if or how we could somehow turn it into a "gated community" so that it would be a private road and we could put a gate at the entrance (everyone on the road is wanting this). The county owns the road. We did not know if it was possible to do this and or the actions we would need to take to get the ball rolling.

Thanks :)

    Bookmark   January 4, 2010 at 1:27PM
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In my area if the county owns it, it is public so people can not be kept from accessing the road.
You may want to call you county DOT and ask.
Maybe you can do gates that are open during the day but closed at night.

    Bookmark   January 4, 2010 at 3:26PM
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You can form a homeowners association or other legal entity and attempt to buy the road from the county for a nominal sum. You would then be responsible for maintenance of your private road up to where it reverted to a county road, presumably at the gate.

The advantages to the county: They get to tax your private road. They don't have to pay the costs of maintaining that portion of the road.

Would the county be willing? It's hard to say. Local politics might preclude it, or there might be other unknown issues. There's no way for anyone on GW to know that, unless they are local to you.

Start by contacting the county politico that represents your area, as a group if possible, and broach the subject.

    Bookmark   January 4, 2010 at 6:35PM
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I'm a Real Estate Broker in the NC foothills and from our side we see this on a much larger scale than most homeowners and so I have a totally different opinion on this subject.

I'm currently in the process of helping a seller I'm representing try to achieve the same results as most of you that have posted have had reservations about in order for her to sell her home. It is very difficult to relate this to folks who have lived on this (or any) private road for over 20 years with no maintenance agreement officially recorded, however the biggest thing to keep in mind is this ::
If you are in the near future or even in the distant future planning on selling your home and you live on a road that isn't owned and maintained by the DOT, then you should consider getting this done now because ALL lenders are requiring some sort of Private Street Maintenance Agreement be in place or they will not fund the loan to the buyer.

So, whether you want to have something recorded saying you are responsible for your share of the road maintenance or not, this will be a major stumbling block for you and any of your neighbors to sell as we move into this crazy world or real estate financing that the new HVCC code has put in place. If you don't look at it from a seller's perspective then you will be very sorry when the time comes for you to sell - whether planned or not - and you put up such a fuss to block it and now dearly need it. Again, all lenders I've dealt with in the past 6 months have had some sort of requirement so don't think the lender working with the buyer who is interested in buying your home will act otherwise - not all the same but generally along the same lines with the main variance being how many owners they require to actually sign on the recorded instrument. Otherwise, you are looking for cash buyer who doesn't care or doesn't know that there is no such agreement in place and in my experiences, the cash buyers are always looking for a better deal which means your whole neighborhood could be the biggest factor to diminishing values in your community for comparable sales when the time comes.

Also, from what I understand from most real estate attorney's I've had the pleasure of dealing with on this issue - if you use the road then you are responsible for keeping it up whether it's written or not - the difference is how the courts feel about it if there are maintenance issues completed to your road and you don't pitch in - then you're neighbors can take you to court to try to recoup your portion of the work - they may or may not win, but they would have a pretty good case if you use the road as your main access to the property.

Please note I'm not saying everyone needs to be gung-ho over getting these in place, but if your house ever has to be sold - you will deal with this unless you sell to someone not dealing with a lender AND who doesn't have good representation asking these questions for them.

It is to your advantage to have something in place and the earlier you get it in place the more control you have over it. If a lender gets involved then you have to play by their rules and you may not like their rules. If you already have one - be as simple as it may - you have a much better chance of them agreeing to it because it already exists and is considered "grandfathered in" and therefore they may be more lenient. But in order for lenders to sell the loans they make on the mortgage market they have to conform to these rules - if they don't then they can't sell their loans - and most lenders don't like to keep stuff in house. It's a viscous circle but it always tends to begin and end with us as the individual homeowners and so this is a much bigger deal than most people who are "content" with the way things currently are will realize.

Have a great afternoon and hopefully I haven't offended anyone or rubbed anyone the wrong way as it wasn't my intent. I just wanted to share the other side's perspective and hopefully raise some awareness to what's happening all around you that you may or may not realize until it's too late and your back is against the wall.


    Bookmark   January 6, 2010 at 1:47PM
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" most of you that have posted have had reservations about in order for her to sell her home."

Chuck, perhaps you should read the posts again. There were only two of us that mentioned not having maintenance agreements, myself and Sweeby. You seem to be using our posts as an example of what not to do, otherwise why the mea culpa over offending someone, and why the "content" comment?

I made it clear in my posts that I did not use either of the easements on the two properties for my own use. Rather, in both cases they benefited only others. I had then and have now direct access to my property from a paved county road. Why in the would would I enter into a maintenance agreement with anyone? There would be absolutely no benefit to me.

In fact, since any perpetual maintenance agreement would be binding on future owners, its very existence would diminish the value of my property.

In the case of Sweeby, his co-owners of the road include a bunch of attorneys. I suggest they probably know what they are doing.

    Bookmark   January 6, 2010 at 2:57PM
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One of the selling features when we bought our land was that it is accessed by a private road.
The original owner of all the lots did a great job on having everything documented and recorded with the county so that there is no question regarding responsibility and right of way.

    Bookmark   January 6, 2010 at 6:54PM
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We had our attorney create this when we were buying our land.

There was already in place a document that said that each property owner was responsible for an equal share of maintenance. It did not, however, specify who got to decide what to do...anyone could've said, "Oh, we need a culvert," hired a culvert done, then billed the rest. Or hired a plowman on their own and billed the rest. You get the idea.

The agreement needs to specify who is a member, how many votes per property/lot, which of the owners of a particular lot can cast their vote, how votes are taken (usually in a meeting), how meetings are noticed and held, what constitutes a quorum, etc., etc.

There are many examples of good and bad agreements on the web.

Only the property owners agreeing to sign onto the agreement are bound to it. You can't bind somebody else who refuses just because they are in the same subdivision. That is why all this should be in place and binding on the lots BEFORE they are sold.

In our case, one lot had been sold already--the first, within a few feet of public road lot--and he refused to sign on. I think he thinks it would have bound him further, but actually by refusing to be a member of the HOA but still bound by the equal share thing, all he has accomplished is denying himself a vote on things. We'll bill him, but I doubt he'll pay. Oh, well. Also, the person who owned the last property on the public road but whose access is on the private is not bound, either, as she was there years before and the private road starts as an easement on her property. So she will get the benefit of access to her driveway but will not have to pay for it. I don't actually mind, it is actually "fair" in the larger scheme of things given how the development came to be in the first place.

Many people do this informally and all is well until it is not. It is good to have formal and legal structures to fall back on when casual and friendly fails.

    Bookmark   January 7, 2010 at 8:59AM
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Sometimes these agreements are so unfair that they impinge on resale value. We looked at a large piece of property that had an easement on one side of it for two adjacent homes. Both were at at or near the far end of the easement. The original subdivider used the entire easement, which was approximately 3/4 of a mile of nicely done gravel road that wound to the top of a ridge.

The original subdivision papers contained language that required all homeowners who used any part of the easement to share equally in the maintenance of the entire road, no matter how much of it they used to reach their own property.

It hardly seems fair to burden someone who uses a few hundred feet of road with an equal share of the cost of maintaining several thousand feet of it, but that is just what was done.

We made an offer on the property, but not as high as we might have if the road maintenance arrangements had been fair, as we figured in the cost of putting in an entirely separate driveway on the other side of property, just to get away from that road maintenance arrangement. The offer was declined.

    Bookmark   January 7, 2010 at 9:34AM
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Built on the family farm almost six years ago and that is exactly the document that we had to produce to accompany the deed. Lucking the only people we had to convince to sign was Dad and one brother, no problem. Fact is we maintain the road anyway as we are the only ones that live there full time.

    Bookmark   January 7, 2010 at 4:47PM
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ITA Hubby and I believe that we already have Federal,state, county, and local government. Last thing we need is another type of government telling us to pay more money. The road was there in the present state when everyone moved in,(except us) They all knew the situation before they bought or built. Everyone chips in to help plow its a verbal agreement. We have no problems and dont need to make it a legal issue.
The guy didn't get the loan because more then one family said NO and everyone has to sign.

    Bookmark   January 9, 2010 at 1:29PM
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The OP sounded like you wanted to know how to help this person get the FHA loan. Guess not. I probably wouldn't agree to sign either.

    Bookmark   January 9, 2010 at 3:36PM
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Actually,We were wondering if they could pass it without 100% of the landowners signatures. I was able to call the loan agent and find out what the requirements were. I didn't know if they would give me the info. I would say I feel bad for the guy, but they have lived in that house for 15 years and are not exactly popular with the neighbors. They have some real issues.

    Bookmark   January 9, 2010 at 6:46PM
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What rights do i have as 1/7th of my neighbors who want to repave our shared road (privately maintained equal shares) who want to hire nonlicensed, uninsured, nothing in place for workers comp, etc "contractors" who arent really contractors? This is the issue: these workers/contractors who want to do the work will be paying 3/7ths of the cost as they want to use the road (they are neighbors). They are rarely sober, and as mentioned above uninsured and nonlicensed and i want real contractors with protective insurance/liability in place. I am a single woman, living alone, and i cant pay 'just any price' they decide to charge for my share only to have crappy work done (or worse lawsuits against all of us when one of the drunk workers/neighbors gets hurt doing the job on 'our' property). HELP! majority will probably vote for these neighbors to do the work (who legally arent even supposed to be using this road and have historically had high traffic, dumptrunk type vehicles tearing up the road in the first place, so getting their share to pay for the repaving would be a good thing, getting them to do the work is the bad thing) and i am not going to agree to anyone unlicensed to do it. Road agreement says they could take action against anyone who doesnt pay their share of maintenance but doesnt specify how contractors are chosen. I want the road paved, and dont mind my responsibility as i use the road to access my house, but i cannot afford to be naive, irresponsible in the choice of who does the work. any suggestions?

    Bookmark   February 13, 2011 at 2:49PM
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I think you would have to get all your neighbors to agree with you before you could change anything. Unless there is some sort of legal document specifying road maintenance then, usually, all the homeowners just agree to maintain. Dh and I used to live on a private road with about 15 or 20 homeowners and it came down to the same responsible people that would maintain the road, maybe less than half, very frustrating!! Sometimes the work was hired out to contractors but most of the time the same people would rent equipment and do it themselves.

    Bookmark   February 13, 2011 at 4:02PM
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