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Maine Alliance for Road Associations

Third party use of private road easement

  • 23 Mar 2022 6:09 PM
    Message # 12678384
    Deleted user

    Hi all, new here. I have a question about easement use  on a private road.  Can the holder of an easement on a private way lease out their property to a construction company?  Our town planning board has granted a conditional use permit for this.  In 2014, we built a house on some land that my mother gave us which is on a private camp road.  We are the only people to live on this road year round, and must plow the  road ourselves during the winter as it is a private road and not a town road.  There are camp owners that use the road to get to their lakefront property and one of the camp owners helps out with plowing during the winter when he goes out to his camp.  We own part of the road, my mother owns another part of the road, and the beginning of the road is owned by 2 other parties, therefore we are one of several burdened parties.  An owner of a large plot on the lake, at the end of the road, has leased his land to a construction company.  The construction company fixes retaining walls along the shore line of the lake,  and has installed a boat launch to keep a tug boat to haul large concrete pieces to  camps in order repair retaining walls.  The town planning board allowed this arrangement, in spite of the fact that it's a privately owned road, privately maintained, very narrow in spots, and not built for large trucks carrying 2000 pound concrete wall segments. It is a very quiet and peaceful place, which is why we built our house on it, knowing that we would be on the hook for plowing and maintenance. We feel that this decision by the town was unfair and wrong.  The town's lawyer gave them the okay, saying that there is no restriction in the property owner's deed that prevents him from leasing his land to another party and that if we didn't like it, then we can pursue legal action.

    I have contacted a lawyer, but not getting very far.  There is nothing in any of the deeds that specifically states the road is for access only, yet that is precisely what the road has been used for these past 70 plus years. I completely understand the need for retaining walls to be repaired for the health of the lake, but believe a construction company going in and out on this road destructive, unsafe, and not fair to the people who own the road.

    I have joined this group to get guidance on starting a road commission, as the lawyer suggested and perhaps when the conditional use permit is asked for again, we will have a cohesive group with statutes and guidelines.  

    Thanks for your help or insight.  Pam

  • 25 Mar 2022 10:16 AM
    Reply # 12680561 on 12678384
    Anonymous member (Administrator)

    I few questions - you say none of the deeds specify the road is for access only.  Do all of the deeds grant a right of way over the road?  If not, then since you say sections of the road are "owned" by the abutters, then if the abutters on both sides of the road at any point agreed to block it, they probably could - but not if those beyond them have deeded access.

    It does sound like you would have a good case for "overburdening."  I don't think the Town should be able to grant a permit for someone to use your road for weights and load widths it was never built to handle.

    Forming a STATUTORY road association (as opposed to a non-profit) would give you some protections you could use.  Your bylaws could certainly put limitations on use of the road, and also you can include in your bylaws the requirement that if an owner or his invitees damages the road, that owner is responsible for the cost of repairs.  Also, a statutory association requires coming up with a formula for assessing each member's dues, and that formula has to be "fair and equitable."  That's a rather vague definition, but if you can show that one member's type of use of the road places a heavier burden on the road than other members' uses, then "fair and equitable" should take that into consideration rather than forcing the other members to pay for repairs of damage they did not incur.

    If you need help setting up a statutory road association, one or another of us can help you through the process.  There is a lot of good information on the Resources page of this website.

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