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Maine Alliance for Road Associations

No ROW = No benefit?

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  • 25 Jul 2022 3:57 PM
    Message # 12860621

    The driveway to my home is 228 feet from the public road . Homes are scattered along my road but concentrated closer to the pond.  The private road runs 6114 feet (1.25 miles). We have a four year old statutory association.  The majority of owners live close to the end of the road where many lots are small and many have water frontage. There is no beach, boat launch or water access for my use. The frontage is all private property.  Baically, I can only use the road to get home. There would not be a reason to go down the road at all. 

    All the driveways along the road have been measured with an engineer’s wheel and a spreadsheet exists to calculate assessment fees.There is only one ingress an egress. 

    With that said. the majority vote assessment method is equal payments. In a nutshell, my dues are the same as the owners at the end of the road.  228 feet vs 6114 feet.

    I have been vocal that my dues are unfair, but the Board is made up of waterfront owners who block every attempt on my part to get a fair an equitable assessment, let me mention it at a meeting or acknowlege my exitence except at pay up time.

    My belief is that I do not benefit from the entire use of the road, but I am required (according to the majority) to pay for it.

    From my research, I have found that I do not have a ROW any further than any point beyond my property along the private road.

    No wording in my deed specifies that my ROW is for any other use than to access my property.

    That source being:  “Maine Roads And Easements" by Hermansen an Richards page 220. 

    The bottom line is that I am paying very excessive dues on a road on which I have no impact, or ROW. (my share of the road is .2% (point two percent!).

    Getting this resolved seems to point to a lawsuit.

    I would appreciate your viewpoint on this matter.  Both as a fair an equitable treatment and my legal standing according to 3101.

    I acknowledge that you would not be giving me legal advise but only your opinion.

    We have a new assessment coming up shortly and it is up by possibly 37.5% to make my share over $600 for my little 228 feet.

    Thank you in advance!

    Attached are a sample spreadsheet and book reference quoted above.

    2 files
  • 30 Jul 2022 8:27 AM
    Reply # 12867713 on 12860621
    Anonymous member (Administrator)

    Based on the compelling information and attachments you present, I'm on your side! Your share of the cost of maintenance does not seem fair and equitable. 

    Our owners also decided against a strict adherence to position (length) along the road in deciding owner responsibility for payment. However, our by-laws state that the 2 parcels with driveway entrances within 100 feet of the beginning of our 800 foot private road will be responsible for 1/5 share of maintenance fees each; the other 8 parcels all pay 1 share each except the parcel without a dwelling unit that pays 1/2 share until developed.

    Do you have a statutory association and by-laws? If so, are you allowed to propose an amendment for vote by  the membership? Your written proposal, the discussion, and voting outcome would place your situation on record. The formality of this approach might change the majority view.

    If not, no one should welcome the expense and time involved in a legal battle. You might then consider mediation.

    Last modified: 30 Jul 2022 11:27 AM | Anonymous member (Administrator)
  • 31 Jul 2022 12:46 PM
    Reply # 12868529 on 12860621
    Anonymous member (Administrator)

    Your situation does sound unfair.  I'm assuming for purposes of this answer that yours is a "statutory" association.  The statute (23 MRS 3101) says,

    "The determination of each owner's share of the total cost must be fair and equitable and based upon a formula provided for in the road association's bylaws or adopted by the owners at a meeting called and conducted pursuant to this section."

     In your case, charging you the same as the others does not sound fair or equitable.  But if the "formula" in the bylaws is that everyone will pay the same amount, that would have to be challenged.  Check your bylaws to see if they have rules for how to change the bylaws - for example, do you have to notify the members 30 days in advance of a proposed change?  

    If the other members refuse to change it, I would also recommend trying professional mediation before resorting to a lawsuit.  (Unfortunately, the cost of a lawsuit would likely far outweigh what they are asking you to pay in dues for many years to come.)  Professional mediators are experts in getting each side to hear and understand the other side's point of view, and to try to find a solution that is acceptable to both sides.  MARA's annual conference this year includes a speaker who will give us a taste of how mediation works.

    As for your quotation from Knud Hermansen's work on Easements, I'm not sure that applies quite the way you think it does.  An appurtenant easement is one that is tied to a particular piece of land, and does not apply to contiguous land that doesn't have a deeded right to it.  In other words, if you owned a second lot that was behind your primary lot and did not touch the association road, you couldn't use the association road to access your second lot by crossing over your primary lot.  Doing so would be considered "overburdening" the easement that was granted only to your primary lot.

    Whether or not your rights to the association road allow you to use the whole road, or only allow you to use the portion that gives access to your lot from the public road, I think would depend on the exact wording of your deed and not on the concept of appurtenance.

  • 31 Jul 2022 1:22 PM
    Reply # 12868539 on 12860621

    I am not sure why there is so much aversion to a distance formula for assessments.  Many seem to be against it.  But for my situation it is a perfect representation of "fair and equitable". A rentable surveyors wheel is all that is needed to measure distance as well as some personal stamina.

    We do have a statutory association, as well as by-laws. However, the board of officers seem to have everything locked-in in terms of the agendas, and meetings.  I would describe it as hostile in maintaining the status quo, and the majority of the owners remain silent to my pleadings.  For example, no agenda items without approval by the board, and at the meeting no deviation from the agenda.  No vehicle to correct the minutes, no reading of the minutes. No "new business" on the agenda.  More of an autocratic process than a democratic process.  The board has told me to go knock on everyone's door to change their minds...... And as mentioned before, the majority of the owners benefit financially from an "equal Pay" assessment method.  I am basically supporting a welfare to the wealthier owners. Please see map I have attached, it gives a perspective of the injustice served.

    If I turn my attention to the law, 3101 s5 does not have a definition for "fair and equitable". It also states that if I benefit from a road, it implies that I am responsible for the entire road, and that is where my association seems to wrest its power and the majority of owners profit from it at my expense.  The "Easements" attachment above clearly states that my ROW ends at my property line along the road, and there is no wording in my deed to the effect of any ROW beyond it.  The wording of 3101 would be better declaring a proportionate responsibility for the payment for maintenance  of one's ROW and not the "road" in its entirety. Opinion, anyone?

    I am not crazy about legal action but it seems to be the risk I take.  It is costing a fortune to do nothing, and it will costa fortune to forge a solution. 

    Is mediation something that is part of a lawsuit?  I do not see that the SCRA board is willing to compromise at all on a voluntary basis.

    Thank You Kindly!

    1 file
  • 31 Jul 2022 3:04 PM
    Reply # 12868602 on 12860621
    Anonymous member (Administrator)

    I'd be interested in hearing what your by-laws say on the amendment process.

  • 31 Jul 2022 3:14 PM
    Reply # 12868608 on 12860621

    Thank you, Roberta!!! (And Andrew as well!!!!)

    "The determination of each owner's share of the total cost must be fair and equitable and based upon a formula provided for in the road association's bylaws or adopted by the owners at a meeting called and conducted pursuant to this section."

    The response from my Board is that "the owners voted by a majority and that is 'fair and equitable'."

    There are no rules to change the bylaws, and motions are not allowed outside of the agenda.  Recently the board required the agenda to be approved prior to the meeting and guess what,.... I am outnumbered again.  And there is no formula in the by-laws for any type of formula, except there is a mention that repairs are equally assessed.  The equally assessed phrase in the bylaws comes from me balking that if a culvert were to be replaced 1/2 mile down the road, I should not have to pay for it because I have no benefit. Only those crossing the culvert should pay. They disagreed.  The assessment method, however, is voted and approved at every annual meeting as part of the agenda.

    I have attached a copy of the wording on my deed as well as a map of the lay of the land. It requires explanation:   I was granted an easement along SCR of 50 feet.  The town required a 50 foot ROW from the original land owner to split up his land. He owned the land on both sides of the road and the 50 foot wide portion of the road itself is 1191 feet long.  After the 1191 feet of road the road narrows to about 20 feet. I believe my easement is appurtenant, it is 50 feet wide and no less,  and is for access to my property only since the wording does not mention usage of SCR beyond my land (since there is no other reason to use the road [benefit] beyond my property)( which runs 859 feet  but my driveway is at 228 feet from the access).

    I have a strong feeling that what Hermansen mentions applies to or is at least similar to my situation. If I cannot use a non appurtenant lot from my appurtenant lot, why would I use a ROW to any non appurtenant lot not my own and beyond my appurtenant lot? There is no reason, and no benefit, in my estimation...... There would have to be specific wording allowing use of a ROW beyond one's property such as " to the waters edge" for example.

    Thank you for the input and I hope this spurs more. 

    PS: The map I have attached shows me having two lots.  It has been combined by the town as one lot.

    Thank you kindly!

    2 files
  • 31 Jul 2022 3:25 PM
    Reply # 12868626 on 12860621

    Thank You, Andrew!!!!!

    I could not find anything in the bylaws concerning amendments.  The bylaws were copied from somewhere, and when presented at the original meeting were rushed through with minor changes by the newly elected Board members.  I have attached the entire bylaws .....

    1 file
  • 01 Aug 2022 2:05 PM
    Reply # 12869694 on 12860621
    Anonymous member (Administrator)

    I have read your by-laws. I see little opportunity for the voices of individual members to be heard. I suggest the by-laws be amended to provide for amendment proposals by individual property owners. 

    Officers run your association. This is not uncommon. Also, the majority voice of the property owners is very important in your by-laws and within the Statutes, 23 MRS §§3101 - 3104. I do not believe, however, that a majority vote necessarily produces a “fair and equitable” outcome. A fair and equitable result should be perceivable by all property owners in your association or, if necessary, by disinterested parties brought in to help settle a dispute.

    “Tyranny of the majority” seems to fit nicely here. The internet is full of interesting information on this topic. You may already know this. Alexis De Tocqueville coined this famous phrase in his classic book, Democracy in America (1838), warning readers that majority rule, while having admirable characteristics, can become an all-powerful force; the majority can easily trample the rights of marginal minorities. The democratic process may work best when tempered by the golden rule.

    Last modified: 01 Aug 2022 4:10 PM | Anonymous member (Administrator)
  • 01 Aug 2022 4:01 PM
    Reply # 12869832 on 12860621
    Anonymous member (Administrator)

    I do see that your by-laws allow for special meetings:

    "Special meetings of the property owners may be called by the Officers or by the property owners upon the written request of thirty-three percent (33%) of the property owners of the Association."

    Is there any way you can obtain 1/3 of the members to sign on for a special meeting?  If yes, you could at least get an opportunity to discuss the matter.  I would want to be asking the question "if any of the other members lived on your lot, would they feel the assessment was fair and equitable (which I realize has no specific definition but I think we all know fair and equitable when we see/hear it).

  • 01 Aug 2022 6:42 PM
    Reply # 12869980 on 12860621
    Anonymous member (Administrator)

    Art -

    This may sound harsh, and I do think you have a valid complaint both on the "fairness" front and on the matter of how the association is being run.  (In fact, you are not the first person on that road who has complained about unfair assessments.  Someone wanted to put in a rental property, I believe, and the association figured they could get them to pay a huge proportion of the road maintenance cost.  I never heard how that one turned out, but it does sound like the Association is looking to get someone else to foot the bill.)  But there are other things that need to be considered, which may well make it unproductive to pursue trying to get your dues reduced.

    You still are not correctly understanding what is meant by "appurtenant" in Hermansen's explanation.  The easement to the lots beyond you is appurtenant to all of the lots to which it was granted.  The reason you apparently can't use the rest of the road is not that the other lots are not appurtenant.  The reason you can't use the rest of the road is that your deed only grants you an easement to the 50 foot right of way, not to the narrower right of way beyond.  The 50 foot easement is appurtenant to your lot.  The narrower easement apparently was not granted to you and therefore is not appurtenant to your lot.

    As for the reason why length of road used is not generally a good way to determine each person's share, you would have to also figure in how many people use each section of road.  So, say there are ten people who own land on a road, and each owns the same amount of frontage on the road.  On your theory, if the owner of the tenth lot owed $100, then the owner of the first lot would only owe $10.  The owner of the second lot would owe $20, the third $30, etc.  But why should the owner of the tenth lot have to pay $100, when most of the wear and tear on the rest of the road is due to use by others?  He should only have to pay 1/10 of the cost of maintaining the first section of road, because the other nine owners would also be paying to maintain that section.  He would have to pay 2/10 of the cost of maintaining the second section of road, because eight other owners would be contributing.  When it came to the last section of road, he would pay 100% of the cost. 

    Now that may look relatively simple to figure out, but how do you do the calculations for each owner when the lots are different sizes, so that each section of road each owner uses represents a different percentage of the length of the road?  And do you also take into account whether each owner uses the road seasonally or year round?  Or how many people in each home drive cars?  Or whether they commute daily, or only go out a couple of times a week?  Or how heavy each person's vehicle is?  Or, (one of my pet peeves,) whether the person habitually drives in the same two ruts and insists on using it any way he pleases in mud season, or whether he rides the high spots to help even out wear on the road surface, and avoids using the road during mud season?  I can make twenty trips out the road with my car, riding the high spots, and do less damage than our neighbor making two trips in the same two ruts with his pickup.  It could get extremely complicated to try to figure each person's fair percentage of the cost of road maintenance.

    Another factor to consider is the value that you are getting.  It looks like the dues you are being asked to pay are comparable to what it would cost just for snow removal on the length of road you use.  (The plow contractor on our road charges $250 to plow a 100 foot driveway for the season.) Yet presumably you get summer maintenance as well. 

    If you were to take the matter to court, you would probably get less than two hours of an attorney's time for what you are paying for your annual dues.  Some types of cases in Maine are now required to attempt mediation before they go to trial.  But I'm not sure what kinds of cases that applies to, and even if your case would qualify, you would likely have to hire an attorney in order to get to the point where mediation is required.

    One option you may not have considered is that it appears your land has frontage on Webbs Mills Road.  Given the tremendous cost of attorney fees for taking a case all the way to Court, it might cost you less to put in a driveway directly from Webbs Mills Road and build a stone wall all along Sloan's Cove road so you have NO access from Sloan's Cove, if that would get your road association to agree that you do not owe them dues.  Not a very practical solution, I'm sure - but an illustration of the cost of Court action.

    So while your current dues may not be as fair as you would like, I'm afraid I don't see an option that will save you money, unless you can appeal to your neighbors and try to get them to see it from your point of view.

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