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Maine Alliance for Road Associations

Meaning of "access" in MRS 23 §3121

  • 12 Aug 2025 8:35 PM
    Message # 13531173

    I thought I would solicit some opinions (non-legal, of course) for what the word "access" means in MRS Title 23 §3121 para. 1. (...when the private road is the primary means of access to the benefited property) 

    Is "access" here restricted in meaning to only "the path the property owner usually takes between  the public road and the front door to the home?"

    Or can "access" also mean the access where the only source for potable water enters the house (which is on the private road)?  Or the only access where the sewer leaves the house (also on the private road)?  (or Data and Communications? ...Or electrical power? (over the private roadway) ...Or the only access the heating service techs can take when removing the leaking oil storage tank from the basement (traversing the private road)? ...Or the primary access overflow guests take when they park on the private road and use the nearer private-road facing door?

    Can there be more than 1 type of "primary access" depending on the nature and details of the access, and as long as any one of these access types use the private road, the homeowner should share in the maintenance costs, under this statute?

    Last modified: 12 Aug 2025 8:36 PM | Anonymous member
  • 13 Aug 2025 10:23 AM
    Reply # 13531324 on 13531173
    Anonymous member (Administrator)

    I believe what the Legislature had in mind when they used the word "access" was simply the ability to get to and from a residential property by conventional motor vehicle.   

    In my experience, most private roads do not have access to city amenities such as sewer and water.  Access to power, phone lines, or cable service is granted by the owners of the property which it crosses.

    To illustrate what I believe the Legislature was trying to protect, I'm attaching two photos.  The first (taken years before section 3121 existed) is of a road that had no maintenance agreement in place (and on which most of the landowners were woodlot owners, who under section 3121 would have no obligation to contribute to maintenance.)  Lenders want to know that if they are financing a home, the homeowner will actually be able to get to and from that home, and their ability to continue to do so requires that there is some mechanism in place for keeping the road passable.

    The second photo illustrates why section 3121 is intended to apply to private roads only, not to former town or county ways that have been abandoned or discontinued.  Unfortunately, use of the term "private road" without providing any definition for that term has led some sellers to believe it applies to any road that is not maintained by the public, therefore including discontinued roads.  On such roads, there is the danger that another landowner may acquire property on both sides of the road and then claim ownership of the full width of the road, denying ALL access.  That is what happened here, after two buyers had been assured the road was a "private road with maintenance shared by the abutters."

    In short, if a person uses a private road to access their home by motor vehicle, they should share in the cost of maintenance.

    2 files
  • 13 Aug 2025 4:14 PM
    Reply # 13531494 on 13531173

    I think this answer dances around the central question. 

    What if the property owner does not routinely need, or use, the private road to drive to her house. BUT, her overflow guests and contractors do use the private road and all of the utilities access the house via the private road?  Does that qualify as enough "primary access" to thus require that homeowner to share in the private road maintenance costs?  

    The statute (§3121) does not mention driving.  The statute uses the vague term "access" which can mean many things.  Obviously, it is poorly written statute, but it is what our government left us with.  And if there is no road association, it is all we have.

    BTW, our private road was established in 1894, before there were motor vehicles.  It is in an urban environment and these days comes with all the usual urban utilities (which run up the private roadway to each house abutting the road).

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