Hello. We are just trying to gather some information to help us best understand a few key elements in starting a road association and voting.  I have looked through and accessed all of the wonderful resources out there, but there are a couple things I cannot seem to find clarification on. Hoping this group can help. 

If you have 6 homeowners on a road, and only 3 want to start the association (and they go through he correct channels under advisement of a lawyer to set up the initial meeting), and then the 3 others go to the meeting but do not want to start the association, what happens? Does there need to be a majority vote to start the association (4/6) or is it automatically a thing because 3 wanted to start it?

In terms of voting for bylaws, is this majority vote? (4/6 in this case)

In terms of determining any repair, improvement, etc., is this majority vote? (4/6 in this case)

What happens if you land at a standstill 3 against 3? Can nothing move forward?

Thanks for your help and insight!

I agree with the previous post. You'll need a majority in order to go forward. I went through the whole process successfully last year (12 owners) only to have a few of those who voted against it go around and scare up enough votes to disband the statutory association the following year. The main reason they gave was they didn't want any liens if anyone failed to pay the yearly snow plowing and maintenance fees.

I agree that a tie vote isn't enough.  But my best suggestion to the questioner and also to the person whose road association got disbanded, would be to have an informational meeting where the details of how a road association works could be accurately explained, and questions answered.  It's possible that there are misconceptions that are making people not want to join.

For example, a statutory road association does not have the power to put a lien on anyone's property for failure to pay their assessment.  A lien is a specific legal process that progresses on a specific time schedule and ends with taking the person's property.  A road association cannot do that, nor would they want to.  

What a statutory road association CAN do is file a "Notice of Claim" against a non-payer.  Many people think of that as a lien, because it's a claim against the property.  But all a Notice of Claim does is sit at the Registry of Deeds as notice that the owner of the property owes a debt to the road association for the road maintenance services which they have enjoyed without paying for them.  If that owner applies for a loan or tries to sell the property, a title search will bring up the Notice of Claim, and before the loan or the sale can be completed, they will have to pay what they owe, plus possible costs.  That's all.  There is a huge difference between that and an actual lien.

Some people will simply pay what they owe when the Notice of Claim is filed, and that's the end of the issue.  Some people refuse to pay.  If it's due to a financial hardship, the road association should consider whether it's better to just have others pitch in to cover it.  If it's someone who could afford to pay but simply refuses to do so, the amount owed may pile up year after year until instead of owing a few hundred dollars, they owe in the thousands.  I've known several cases where the owner eventually sold their land, and paid the full amount then.  It's also possible to take a non-payer to small claims court - but again, that would not result in taking the person's land - only in settling the debt.

Another worry people may have is that the road association will want to pave the road, which is going to cost members an arm and a leg.  The road association statutes limit the assessment any owner can be charged in a year to no more than 1% of the municipal valuation of that property.  On top of that, paving requires an affirmative vote of at least 3/4 of the members.  So in an association with only half a dozen or a dozen properties, unless there are some really expensive properties, paving is unlikely to happen!

Bottom line - clearing up misconceptions about what can and cannot be done under a road association may be all that is necessary to get enough people on board.  If need be, I or one of the other MARA Board members might be able to meet with your owners for a Q and A session to help things along.  Or, if things are really contentious, you might think about bringing in a professional Mediator to help people understand each other's issues.  If you're interested in either of these options, send me a private message and we can discuss.

My understanding is that all that is needed is a majority vote by those present.  As long as everyone was notified and has the choice of attending or not attending, if they choose not to attend, that's their loss.  

I hope someone will correct me if I'm wrong.

I do know that a few years ago I asked the attorneys who were speaking at the Annual MARA Conference if it's possible for a number of people to show up at the initial meeting and, being the majority, vote NOT to form an association, or vote to set the assessment at $0 and so defeat the organization.  The answer was yes.  But now (since 2021) we have 23 MRS section 3121, which says that, "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..."

Section 3121 goes on to say that if there is no road association or agreement as to how the road will be maintained, the default position is that each owner shares equally in the cost of maintenance.  It's a horrible law, as it provides no due process and can take landowners entirely by surprise when they suddenly get a bill for "their share" of maintenance that someone else decided was necessary.  I've also seen it wrongly applied where either there is a discontinued road that remains open to the public but with no public maintenance, or where there actually is no road and one landowner can decide to cut off all access.  But my one hope when they passed it was that it might motivate residents on a private road to form a statutory road association to make sure due process IS provided.  A statutory road association is definitely a better alternative than to have someone who wants a better road just hire a contractor and send everyone else a bill.  I wonder if those who are opposing the association are aware of the alternative?

You are correct, section 3121 does NOT give the association the ability to file a Notice of Claim against a non-payer.  What it does do is allow one residential property owner to make a "legal claim" against another non-paying residential property owner. 
And since there is no due process for how the amount owed is determined, there's no telling what the amount of the claim might be.  Part of my point is that forming a statutory association avoids worse consequences that can result if there is no road association, and it might be helpful to make the unwilling participant aware of that fact.