Maine Alliance for Road Associations - Deeded Easement and Statutory Road Associations

26 Sep 2023 9:34 AM

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Message # 13259197

Anonymous member

Hi,

I know I am not going to get Legal Advice, and I have contacted a lawyer, but I am more looking for a general interpretation of the following (like an 'on the face' perspective):

Members of my road are trying to form a Statutory Road Association. (I have posted about this in a previous post). I have done a deed search for all properties involved (including my own). My deed and the second home owner on the road (roughly 1/2 the distance of the road) are burdened with a 66' right of way, for the land past our two properties (8 lots) for access and utility installation.

However, on the deeds of all of the land beyond ours, who access them through this ROW is the following:

A common right of way for all purposes of access and all manner of utility service over and along the 66’ wide right of way depicted on “Boundary Survey, Land of XXX” by XXX dated July XX, XXXX recorded in Plan Book XXX, Page XXX (hereinafter the “XXX Plan”) as leads from (XXX public road) in Town X. In a generally westerly direction to the parcel conveyed hereby. By acceptance and recording of this deed grantees, for themselves, their heirs and assigns covenant with XXX Owners their heirs and assigns that they will share proportionately with other lots with access over said right of way in the expense of maintenance, improvement and upkeep of said road.

1)Do others interpret this as, to be able to use the right of way that our properties are burdened with, these owners are solely responsible for the upkeep from the public road to their properties (however they determine they want to divide it among themselves)?

2)Does what is outlined in their deeds override any by-laws or maintenance fees voted on (at least for the home owners who own the right of way) during this Statutory Road Association meeting?

Thanks in advance for any thoughts

Last modified: 26 Sep 2023 9:36 AM | Anonymous member

27 Sep 2023 6:19 AM

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Reply # 13259675 on 13259197

Anonymous member (Administrator)

I am not an attorney and cannot offer legal advice. Regarding numbered items:

1. Yes. The owners specified can all use the ROW and "will share proportionately" the costs of road maintenance. Your interpretation, i. e., using distance from the public road to property for determination share of maintenance costs, makes sense to me, but I would get legal advice here.

2. I believe what is written in owners' deeds would prevail and override any conflicting wording in the by-laws approved by vote of the owners at the meeting to form a statutory road association.

Last modified: 27 Sep 2023 6:29 AM | Anonymous member (Administrator)

27 Sep 2023 11:21 AM

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Reply # 13259811 on 13259197

Anonymous member (Administrator)

I would carefully review the exact wording of each of the deeds as well as the Plan, and see what clues they give as to how to divide the maintenance responsibilities. You quote their deeds as saying, "...grantees, for themselves, their heirs and assigns covenant with XXX Owners their heirs and assigns that they will share proportionately with other lots with access over said right of way in the expense of maintenance..."

I assume that XXX refers to you and the other landowner over which the access runs. If that's the case, the phrase "covenant WITH the owners" sounds to me like it could be argued you and that other owner also will share in the cost.

The question is, what was intended by the word "proportionately?" I know that a lot of people (particularly those who are closest to the public road) argue for basing each person's fee on their distance from the main road. But that can result in the people farthest out paying a whopping fee, and getting them to pay that much may be problematic. In order to really calculate it fairly, you'd have to take into account that the 8th person out should only pay 1/8th of the cost of maintenance of the first section of road, which is used by everyone. Then they should pay 1/7th of the cost of the next section of road, which 7 people use. Then they should pay 1/6th of the cost of the next piece of road, etc. Each of those sections would have to be calculated according to footage. Then you could figure in the fact that some sections of road are more expensive to maintain, due to hills, culverts, low boggy spots, etc. In short, trying to figure out a "proportionate" share can be difficult if not impossible.

Many road associations have come to the conclusion that the best option is to simply charge everyone the same amount, which assures that no one will pay an exorbitant amount anyway. (On our road, each owner pays about as much as they would to have their own driveway plowed, but what they get is year-round maintenance - plus a feeling of community. So what is there really to complain about?) Under that system, it should be agreed that in return for sharing in the cost of maintaining the whole road, that everyone in the road association has a right to use the whole road if they should desire to do so - even if it's just to go for a stroll or walk their dog.

One option we offered to the first people on our road when they complained was, if they didn't want to be contributing members of the road association, they could move their driveway so they enter from the main road, and block off their old driveway that enters from the association road. If they will not be using the association road at all, they will not owe dues. (They have paid their dues ever since, without complaint.)

What ever is decided by vote at the road association meeting should be worded so as not to conflict with the language that is in the deeds or on the Plan. If you have bylaws, they should also be carefully worded to agree with what it says in the deeds. So the question remains, what exactly is meant by the wording in the deeds? My guess is that if you asked multiple attorneys what it means, you would get multiple answers, and would pay each of them for their answer - which might or might not prevail if it were to go to court.

If it looks like there's a possibility of having it end up in Court, my strong recommendation would be to obtain a professional Mediator. Have them work with the members of the road association to find something they can all agree on, and then put it in writing and file it with the Registry of deeds. Pay the extra fee to have the Registry cross reference it to each of the properties so when lands change hands, the agreement is clear to the new owners from the outset. I highly recommend Family and Community Mediation as a cost-saving alternative. In the mean time, sign up for MARA's fall conference on Oct 7th, 2023, as one of the speakers is a Mediator Trainer who is going to help us learn some of the skills any of us can use to de-fuse disputes.

28 Sep 2023 5:44 AM

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Reply # 13260171 on 13259197

Anonymous member (Administrator)

I agree with Roberta. "Proportionately" is the key word here. I wish the word had not been used! It will create a lopsided responsibiliy that, to me is an unfair burden on the property owners toward the end of the road. We also found it best to share equally in the share per parcel.

28 Sep 2023 8:06 AM

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Reply # 13260185 on 13259197

Anonymous member

Thank you for your responses, "proportionately" aside, what are the thoughts on this rest of this assertion? "will share proportionately with other lots with access over said right of way in the expense of maintenance, improvement and upkeep of said road. " Specifically, " with other lots with access over said right of way" - can this be interpreted as only the lots who have access to this right of way AND is exclusive of the lot(s) burdened with the right of way?

My lot is burdened with the right of way. I have no need for access to this right of way as it is my own property. If not for this right of way this would just be my driveway. Additionally, there is nothing in my deed stating that I am responsible for any cost sharing, only that I am burdened with allowing access across my property.

From what I understand, generally covenants are only on the deed of the burdened estate. The fact that this appears on all deeds of the benefitting estates, I interpret as a burden for them; benefitting me. Stating "for the benefit of this right of way covenant their property is responsible for its upkeep, improvements and maintenance." Again, I have reached out to lawyers to see how they interpret it.

For context and for those concerned about the owners at the far end of the road. I am situated 180 feet in, my next neighbor is ~800 feet in, who is also burdened with a RoW across his land (has no cost sharing language in his deed, just the RoW burden). 8 neighbors are clustered more than a quarter mile further. I'll let you guess who thinks we should all pay the same and who does not.

Thanks again.

Last modified: 28 Sep 2023 8:35 AM | Anonymous member

29 Sep 2023 11:32 AM

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Reply # 13260966 on 13259197

Anonymous member

I believe your attorney will point up to you that by virtue of the “covenant,” i.e. “agreement among parties”, created in the easement document, you may well be responsible for a share of the cost of maintaining the roadway and that the real determination of that obligation will be a function of just how much you are willing to spend to settle the issue in your favor. In other words, is the benefit worth the cost.

The pressing question may be “What was the intent of the original owner of your land, the grantor of the easement?” Was the word “they” in “….that they will share proportionately……” a collective “they” to include all parties or does the word refer only to the grantees, i.e. the beneficiaries of the easement who you believe to be the back lot owners. That may lead to something more than just your attorney’s interpretation for rest assured the back lot owners attorney will interpret differently. The ease or complexity of discovering the intent of the original owner will likely depend upon how long ago all this took place. If the back lots were created by an independent developer and the access easement created by negotiation with the easement grantor, then a query to the original participants or their attorneys might reveal the intent. If the subdivision of the back lots was accomplished by obtaining municipal approval and filing of a subdivision plat, then public meeting records may be available to determine the intent. You may be able to do some research on this issue without an attorney and knowing the original intent of the parties may be powerful – in your favor or against.

My personal opinion based upon your explanation, however, is that a 66’ wide easement is well in excess of a 12’ wide private driveway and that the original easement grantor perceived a lasting benefit for having access to the roadway created by the easement and the “they” was meant to be collective. Otherwise, the original owner would have kept (or constructed) a private driveway for the owner’s personal use and that also applies to your immediate neighbor some 800’ down the road.

Keep in mind that should you and your neighbor decide to take legal action to clear the air you will pay 50% of your legal costs while the back lots will divide their legal costs by 8! Unfortunately, that is not an even playing field. And, if the group properly forms a statutory association and you have no other access to your land, the association may have an enforceable claim for payment of road maintenance and your decision on whether or not to participate in the group deliberations may not be relevant.

Also, keep in mind that proportionately does not mean equally so your best approach might be to seek an amicable split that is more beneficial to you than totally equal and properly presented may even have some logic that the others might see.

As Roberta mentioned, the MARA conference being held on October 7th will feature an experienced mediator discussing conflict resolution. On-line registration for participation via ZOOM remains open and may be beneficial for you – I know I am hoping to gain from that presentation in person – old dog/new tricks…one never knows.

01 Oct 2023 11:46 AM

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Reply # 13261525 on 13259197

Anonymous member

I would also like to add my thoughts to the subject here. I am neither a lawyer, advisor or administrator.

If I were to grant someone a ROW, I would certainly not commit to a “proprtioned” contribution for the upkeep of that ROW.

After all, it is my land. And if it is my land is it my ROW or a ROW for others? Fee ownership of a private road requires contributing to maintaining of a private road, but section 3121 qualifies this particular issue here.

Covenants are covered as a rquirement for consideration when an association determines assessments as mentioned in

Title 23 MRS Sec.3121 SubSec 1:

Cost sharing. 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.

The terms “common benefit”, in my opinion, would mean that everyone has the same benefit over a road. As an example, a road leading to a private beach, etc. where all the property owners have a ROW to the beach, etc. Many roads, however, have dead ends, and the benefit (common benefit) of a ROW ends, again in my opinion, at ones property line. Any payments for maintenance beyond ones property line would yield zero benefit.

Equal assessments make sense when the common benefit is equal. Propotioned assessments make sense when the benefit is not common or equal. Unfortunately, in many uninformed associations, the folks at the end of a road will always want an “equal assessment” since it is monetarily advantageous, and sold (here on MARA) as being the “neighborly" thing to do.

With all due respect: Which leads into my pet peeve about MARA admins who advocate openly for equal assessments: The law allows the majority of owners to determine how assessments are applied. MARA admins are showing a bias when they mention equal payments as the best way to go, and it being the neighborly thing to do, and it keeps the peace. As a public service I would like to see that MARA admins reserve their opinions on this matter to prevent any undue influence to any reader of this discussion board.

Thank You.

Last modified: 06 Oct 2023 5:51 AM | Anonymous member (Administrator)

02 Oct 2023 9:54 AM

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Reply # 13261779 on 13259197

Anonymous member (Administrator)

Art - With all due respect, you also have every right to express your opinion here, and to influence people as a result. You argue for proportioned assessments based on the distance of road used by each landowner. As I have discussed with you before, if your objective is to see that each person contributes their fair share of the actual cost of maintenance of the stretch of road they actually use, then distance is not the only consideration. You would have to calculate not only the distance in footage from each person's property to the town road, but also the cost of maintenance of each section of road, which may not be equal if there are hills that are prone to erosion, or boggy areas, or culverts, or areas that need more ditching, etc.

Then you would also have to take into account that the person farthest in would not have to pay the full cost of every foot of road they use, but only a fractional part based on how many people use each section of road. So the last person in on each side of the road would pay the full cost of their half (i.e. to the center line) of the section of road abutting their property, but the responsibility for maintenance of the first section of road would be divided between all of the owners, since all would have to use that section of road. So if there were ten abutters, the last person in would pay only one tenth of the cost of maintaining the first section of road, one ninth the cost of the next section of road, one eighth the cost of the next section, etc....

Then there's the question of how many vehicles each property owner has; how many trips they make per day; the weight of their vehicles; whether they drive so fast they splash the fines out of the puddles in wet weather and spew the fines into a cloud of dust in dry weather, or if they keep their speed down to preserve the road; whether they habitually drive in the same two ruts, increasing the need for grading to restore the crown, or if they are careful to keep their tires on the high spots to even out the wear; etc. (On our road, there are two seasonal owners beyond us who use the road on occasional weekends, and one person who makes one trip in and out daily. We use the road nearly daily, but always with one tire on the high edge and one tire on the high middle. Yet the others still manage to wear two ruts into the road faster than our use of the high spots can level it. Should we pay at the same rate per distance that they do? Or should they pay for the grading to restore the crown?)

You could compare the inequity to the payment of property taxes. We all pay taxes that support schools and town road maintenance, even if we have no school aged children and live so close to the town line that we rarely use the town's roads. In fact, many of us use very few of the services our property taxes help pay for. (This is particularly true for summer residents.) If we complain, they tell us that taxes are not tied to services, and/or that those services are there, should we desire to use them. Similarly, road association dues may not be tied to one's use of the road.

In short, trying to accurately determine the cost of each person's use of the road would be mind boggling. In this age of Artificial Intelligence, perhaps someone can come up with a computer program where you can fill in all of the variables, (distance from each property to the main road, number of abutters using each distance, cost of maintenance of each section including considerations such as erosion, number of vehicles and trips per day per abutter, etc,) and the computer will assign each person the actual cost of their use of the road. Until then, I'm sticking with equal shares and allowing everyone to use the whole road if they wish to do so. But that's just my opinion, and you are welcome to yours. The reader can choose by whose opinion they will be influenced.

05 Oct 2023 8:18 AM

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Reply # 13263346 on 13259197

Anonymous member

Roberta, with all due respect, your list of exceptions are completely ignored when you choose equal pay. You do not decide to "allow everyone to use the whole road if they wish to do so." That is reserved through ones deed.

Rationalizing that someone who may walk their pet along a road beyond their property should pay a share of the entire maintenance of that road is far fetched.

There are easement laws developed over hundreds of years outlining the many variables to consider boundaries and rights. Your advocacy of equal pay rebuffs those rules.

I have worked up a spread sheet for your road that compares equal pay to pay by distance for your road. It was no that difficult to develop. It basically showed how equal pay is nothing but a subsidy for the folks at the end of a road and a burden for folks at the start of a road paying for maintenance that they do not benefit from.

Let me ask you.... do you own property at the end of a road? Do tell us.

The book "Maine Roads and Easements" by Hermansen and Richards is free to download (PDF) from the Maine State Library. If you do not have access send me an email and I will mail it to you or anyone.

06 Oct 2023 12:34 PM

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Reply # 13264089 on 13259197

Anonymous member (Administrator)

Art - I do have a copy of Maine Roads and Easements. Could you tell me what pages discuss road association dues apportionment? I will look into what it says there.

As for where my property lies, I have a piece of undeveloped property near (but not at) the end of a road association road. I have visited it only a handful of times in the last year, and walked the last 1/3 mile from my daughter's place. The last 1/2 mile gets road association winter maintenance only. My daughter's husband provides the summer maintenance with my husband's tractor and york rake, and he has also on occasion raked the part that is year-round maintained by the road association, when someone else has driven on it when the road is soft in the spring. (We make every effort to stay off it then.) He has also on occasion used a rented mini-excavator to dig rocks and logs out of the road. But by your system, all those things are irrelevant - I should still pay more than almost everyone else on the road.

The place where I actually live is not a road association road, and perhaps my experience there colors my opinion. I live 6/10 mile in on a 1.6 mile discontinued road that remains a public easement, which means that the general public still has a right to use the road pretty much any time they want, any way they want, but the public refuses any responsibility for maintenance. It still appears on GPS as a through road (although the midsection is only marginally passable) so on occasion we do get through traffic - often delivery trucks looking for people on the other end of the road. More often, the driver sees the condition of the road beyond us and drives back out again, so they use the road twice, often when we are trying not to use it at all so as not to damage it when it's soft.

Meanwhile, the town has granted building permits for four other houses on our end of the road - two before us and two after us. These people all bought their properties before the law was passed that requires real estate disclosures if a road is not maintained by the public. Because we had put the road in good shape at our own expense, these other people had no idea it wasn't maintained by the public, or that they would be expected to share in the cost of road maintenance. We have not felt it was right to compel them to help maintain a road for the public's use at private expense, so we have not formed a road association. We have borne nearly the entire expense of maintaining 3/4 mile of road for the last 52 years, so please don't jump to the conclusion that we are just trying to get out of paying our fair share due to being the last one in (which we are not.) (Recently we did ask the other residents to contribute a load or two of gravel each, because with four other homes plus the public using the road, it has gotten worse than we could keep up with by ourselves.)

The two houses beyond us are only visited on occasional weekends year round, including in mud season. When they are here, they make multiple trips in and out per day. We use the road on a nearly daily basis except in mud season, when we park out at a neighbor's if the road is soft. Do you really think that the two owners beyond us owe more for road maintenance than the year-round residents who live before us? All I am saying is that if you are interested in fairness, there is a lot more to consider than simply distance of road used.

Once again, I would point to property taxes. By virtue of owning property in a town, you owe property taxes that support services you may never use, but which are available should you want to use them, and which benefit the public as a whole. Similarly, by virtue of owning property on a road association road, you owe dues to the road association that support services you may never use but which benefit the road association as a whole.

Perhaps you are correct that one's rights to use the whole road are determined by one's deed. I don't know - I think that's a gray area. But I do know many people who live near the beginning of road association roads who would argue they are entitled to use the whole road, and who would be irate if you tried to stop them.

You asked if I live at the end of a road. May I ask where on your road you live?