Maine Alliance for Road Associations
Our Board notices of the annual meeting fails the 30 day requirement for calling a meeting and again they do not notify us of the vote within 30 days after the vote. We are told it is an inconvenience on the Board. I know by not following Title 23 can make unpaid assessments legally non binding and impossible to collect, but do they still have the authority to set assessments, collect funds, and spend those funds?
Interesting question! You are correct that the law requires 30 day notice of meetings and 30 day notice of the result of the votes, which could make the entire association not legally binding if a complaint were to go to court.
On the other hand, as long as it does not go to court, there is nothing stopping the association from continuing to run that way. In essence, it would be pretty much the same as an "informal" or "voluntary" association.
That would mean that if someone stopped paying their dues and the association tried to collect through a Notice of Claim, (a process that is available for legitimate Statutory road associations,) a real estate attorney who is sharp enough to notice the flaws in the association could get the non-payer off the hook. At that point it might boil down to a question of whether it was cheaper for the non-payer to just pay what they owed rather than paying for a good real estate attorney.
The other thought that comes to mind is that I fully understand the "inconvenience" of meeting the 30 day notice requirements, having served on a road association board for a number of years myself. While it may seem like a trivial matter to make sure the notices go out on time, board members are volunteers whose lives are likely just as busy as the lives of those who don't feel they have time to serve on the board.
So my final suggestion would be, if those who are on the board are unable to make sure the notices go out by the deadline, maybe it's time for someone else to step up and either become a board member, or at least volunteer to help get the mailings out on time.
Thank you for your questions regarding failure to follow Title 23.
When I read your comments, I immediately thought it was written by a member of our statutory road association. I will follow the responses to your questions closely.
Our association has a president who does things unilaterally, without any discussion or consultation with the membership. We have four Board of Directors and there has never been a meeting of the “board”. Our bylaws are not followed as written, and there is no adherence to Title 23.
Our bylaws state “there will be an annual meeting of all members held on the second Wednesday of September at 6pm “. According to our bylaws, this year’s meeting should be on September 14th, but our president has made the unilateral decision to hold the annual meeting one month earlier, on August 17th. There is no explanation as to why the meeting date is being moved. By moving the date of the meeting, it presents a problem of those members who are unable to change vacation plans they have previously scheduled and cannot attend the newly scheduled meeting.
Road association members who look forward to our annual meeting are being denied the opportunity to attend the meeting, participate in discussions, vote on budgets or the elections of officers. We have 18 members, however the change of date for this year’s meeting was only sent via e-mail to 8 members.
The minutes of last year’s annual meeting were not sent out until approximately 6 months after that meeting and were not sent to all members of our road association. There was an “emergency meeting” held on March 23rd to discuss the treacherous condition of our roads and no one has received the minutes of that meeting.
I am not an attorney. What follows is personal opinion only.
With reference to Terry's original question (above), I believe §3101 (4-A) gives the board authority to carry out the will of the majority voted at a duly called meeting:
4-A. Road associations. A road association under this subchapter through its commissioner or board may address present and future repair and maintenance of a private road, private way or bridge as authorized by the owners at meetings called and conducted pursuant to this section until the association is dissolved by a majority vote of its members.
Therefore, the board has no authority to “set assessments, collect funds, and spend … funds.” Officers engaged in illegal activities or activities not authorized by the owners at a duly called meeting can be held liable for their actions.
Immunity from suite, §3101 (7), as I see it, applies to association officers "who undertake(s) activities of a road association under this subchapter" but does not apply to activities undertaken but not authorized under the subchapter.
I am in agreement with Roberta's first two paragraphs above. it is my understanding that if a disgruntled member refused to pay their maintenance fees and the commissioner or board is not acting pursuant to the Statutes, 23 MRS §§3101 - 3104, then the means to collect delinquent maintenance fees stated in §3104, Penalties and process, can be denied by the court, i.e., the board and the association could lose authority under §3104 to enforce collection of maintenance fees and would revert to informal status.
However, if the tests of 3101 fail then would not the provisions of 3121 apply? And then ANY other owner on the road could pursue collection with the primary question being that the cost is reasonable and the repairs and maintenance necessary?
§3121. Responsibility for cost of repairs to and maintenance of private roads that benefit residential properties
If more than one property shares a common benefit from a private road, each property owner who shares the common benefit is responsible for a share of the cost of reasonable and necessary repairs to and maintenance of that private road determined pursuant to the terms of any agreement entered into to determine the share of the cost of reasonable and necessary repairs to and maintenance of the private road, any deed restriction, covenant or declaration applicable to the benefited property, any road association created pursuant to this chapter or otherwise or any method elected under section 3101, when applicable. In the absence of any such agreement, restriction, covenant, declaration, road association or method elected under section 3101, each residential property owner, after reasonable due process and notice, shall share equally in the cost of reasonable and necessary repairs to and maintenance of the private road when the private road is the primary means of access to the benefited property.
3. Enforcement. If a residential property owner fails to pay that owner's share of the cost of reasonable and necessary repairs to and maintenance of the private road in accordance with subsection 1, after a demand in writing, a legal claim for payment of the amount owed may be brought against that owner by a residential property owner or owners who share a common benefit in the road, either jointly or severally.
That's an interesting question. Section 3121 is brand new and has yet to be really tested to find where its flaws may be. The bill was proposed simply to satisfy lenders that at the time of purchase, there was some mechanism by which the access to a property would be kept passable. Once the sale has gone through, there is little in the law to assure a maintenance agreement will continue to function. I've already seen one case where a realtor applied it to a road that is not actually private, but a discontinued road with a public easement. The realtor described the road as being private, with maintenance shared by the abutters. The problem is, only one of the four abutters is a residential property. None of the other three (one of which is the Town and another is a logger) has any interest in repairing the road, which has been damaged by use as an ATV trail.
When the Legislature was considering the bill that became section 3121, they were proposing that only the owners of residential properties would share in the cost of maintenance. I pointed out that ALL owners needed to be included, or a logging operation could get a free ride at the expense of residents. They did change the law to include the owners of all abutting properties, but failed to make a similar correction under enforcement - so a resident only has recourse against other residents, not against a logger.
We also worked hard to make sure section 3121 would allow ANY road maintenance agreement to fulfill the requirements, because there are many situations (especially where there are only a handful of landowners) where an informal or even verbal agreement works fine. (The law accepts "any agreement entered into to determine the share of the cost of reasonable and necessary repairs to and maintenance of the private road...") So the question you raise is whether a non-compliant statutory association could be thrown out, allowing the road to revert to section 3121. The law didn't anticipate that situation, and therefore doesn't make it clear if 3121 would kick in when a prior agreement breaks down.
According to section 3101, a statutory road association continues to exist "until the association is dissolved by a majority vote of its members." But if a road association fails to perform as required by the law, there doesn't seem to be any mechanism for determining that it cannot continue to operate, other than a vote of the members.
I would love to see attorneys and legislators consider your situation and see what can be done to tie up the loose ends in the law.
The Maine Alliance for Road Associations