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Maine Alliance for Road Associations

Subdivision using Private Road

  • 24 Nov 2024 3:19 PM
    Message # 13434482

    Does anyone have a subdivision that is using a private road to access their lots?  We have a statutory road association and a subdivision is being built at the end of our private road.  We are interested to see if others have dealt with this and possibly added language to their bylaws or the HOA bylaws?  The builder is not opposed to adding language to their HOA bylaws (for instance obligation to paying Road Association Fees) but wondering if we can add other things.   

  • 25 Nov 2024 9:56 AM
    Reply # 13434687 on 13434482
    Anonymous member (Administrator)

    In order to tell you for sure, I'd need to see exactly which road and lots are involved, and how they relate to each other.  Could you send me a private message at roadways@juno.com?   (Disclaimer - I am not an attorney, so I cannot give legal advice or interpret law.  What I say is based on 40+ years of experience with Maine road controversies.)

    In general, if the subdivision is a new division of a lot that was considered a "benefited" parcel when the statutory road association sent out its original Warrant, then I would think it would already be included.  Any division of a lot that was notified at the formation of the road association would by necessity already be obligated to pay an assessment to the association due to being a benefited lot.  Creating a subdivision would create more traffic, so each lot in the subdivision would need to pay an assessment at the same rate as other similar lots as defined by your assessment formula.

    On the other hand, if the parcel being subdivided was not among the lots notified and made a member when your Warrant for the original meeting was sent out, then the question is whether or not it is in fact a "benefited" lot.  If not, then it may be a "stranger to the deed," which could cause problems if it is accessed over your association road when it should be accessed from elsewhere.  If it was a benefited lot but was not included when the original Warrant went out, your association could have serious problems.  (See Sunshine v Brett - there's a link on the Resources page of this forum.)

    As the attorneys who speak at the MARA conference always remind us, the best way to stay out of lawsuits is to make sure you follow every requirement of the statutes to the letter.  Keep that in mind as you decide what to do, especially if you are considering amending your bylaws.


  • 25 Nov 2024 12:09 PM
    Reply # 13434759 on 13434482

    The parcel was always part of the road association and I assume got notification (finding the paperwork is another story as the road association has been in existence for many years long before electronic notifications). 

    I was wondering about adding language to the subdivision's HOA to avoid any confusion in the future about whether they were included or not.  The HOA could say they are obliged to pay any existing road association.  Does that make sense?  Just wondering too if there is any specific language they can use that would remove any future arguments with people who buy those lots.

  • 26 Nov 2024 8:44 AM
    Reply # 13435093 on 13434482

    I have had two experiences with private roads and added subdivisions.  Currently I live on a road that has a nonprofit association.  Before I moved here there was an additional subdivision approved.  According to history the town approved the subdivision with the requirement they become a member of our nonprofit association and also the new subdivision was responsible for maintenance of their own section of road that extended off our existing roads. This was recorded on the plan and in the deeds.  

    In Windham we formed a statutory road association for a 725 ft section of paved road that had 4 other roads that benefited from this paved road the association was going to maintain.  The four other roads consisted of a dirt road with no association, a dirt road with a long standing statutory association, and two new paved roads that were part of a new subdivision approved by the town.  The new subdivision did have in the approved plans and deeds that they had to form an association to maintain their roads.  

    We did approach our attorney about have all the roads under the one new statutory association as we drew up the bylaws. The main concern for residents along the 725 ft of paved road was paying for maintenance on the roads where they received no benefit of ingress or egress.  

    Our attorney suggested having all the roads under one association could work by each road having their own road commissioner who would prepare their annual maintenance budget.  The treasurer would have to compile all the commissioners inputs for the budget then calculate out what residents/owners would have to pay based on what street they lived on.  While this could be done easily with a spreadsheet to calculate the different assessments it was felt the arrangement would be too complicated to administer over the long run.  We ended up with a new statutory road association for the 725 ft of road leading in and the remaining roads were left to form their own association if it did not exist already.

    Hope some of this background helps.

  • 26 Nov 2024 2:06 PM
    Reply # 13435245 on 13434482
    Anonymous member (Administrator)

    If you cannot find the documentation of when your statutory road association was formed, I think the best thing to do to avoid confusion in the future would be to go through the process of starting an association as if it has never been done before.  That would give you documentation to have on record, and would also allow you to make sure your bylaws are worded to include any new subdivision.  The only down side (aside from a little bit of extra work for the initial Notices,) would be that if you have any outstanding Notices of Claim, the new association probably would not be able to claim them.  You'd have to start fresh.  If everyone is paid up, that won't be a problem.

    As for how to calculate dues when adding new subdivisions, everyone who uses a road should be contributing to its maintenance.  So the people in the new subdivision need to pay for maintenance of the original road which is used to get to the subdivision.  But if people on the original road have no right to use the roads in the new subdivision, and/or have no reason to use them even if they were allowed to, it may make sense to have the subdivision form their own association to maintain their own roads, in addition to paying to use the original road.  One way I've seen that handled is by having everyone in the new subdivision just make one payment to their own association, and then their own association makes a lump sum payment to the original association to cover everyone's use of the original road.

    One thing that doesn't sit right with me is when a town approves a subdivision off of a road the town does not maintain, forcing those who depend on the original road for access to suddenly see increased use of their section of road, without their having any say in the matter.  There are cases where the existing road was not built to withstand the extra traffic a subdivision will bring in, but the town doesn't seem to consider that.  The town just sees that more development will bring in more tax revenue, and since the development is on a private road, the town's expenses for road maintenance will not increase.  So they will reap the benefit of increased tax revenue that can be spent elsewhere in town. 

    I've also seen situations where people in a new subdivision off of a private road decide to form a road association and want everyone on the original road to chip in to help maintain the new road.  Your bylaws could clarify what sections of road your association maintains, and make it clear that anyone whose lot benefits from use of those sections of road must be a paying member of your association.  Again, starting with an initial Notice issued by a Notary as if you are forming a new association would allow you to make sure things are set up clearly and according to law.

                            The Maine Alliance for Road Associations


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