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Maine Alliance for Road Associations

Private Ways Statute, then and now

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  • 05 May 2010 12:33 AM
    Reply # 335845 on 193877
    Deleted user
    sworn to faithful discharge of their respective trusts ??? I've looked this up, read and reread , trying to understand how this should be applied to road associations. What exactly are they swearing to do? Is there a generic oath that applies to many associations ,etc., as in the town officials oath that you mentioned.?? Is there a code of ethics? Is this just a formality not to be taken seriousely? If associations no longer need to have 3 signers every year , who sets the agenda ? When do new commissioners get sworn? Without the necessity of checks and balances, like by-laws, a quorum, committees, what are they swearing to do ? To follow a majority vote, of a uninformed minority of possible participants.
    Last modified: 05 May 2010 12:33 AM | Deleted user
  • 04 May 2010 11:37 PM
    Reply # 335889 on 335845
    Deleted user
    Alanna Brown wrote:sworn to faithful discharge of their respective trusts ??? I've looked this up, read and reread , trying to understand how this should be applied to road associations. What exactly are they swearing to do? Is there a generic oath that applies to many associations ,etc., as in the town officials oath that you mentioned.?? Is there a code of ethics? Is this just a formality not to be taken seriousely?


    Yeah, the law doesn't explain itself very well here, does it? I interpret it this way:

    23 MRSA 3102 states that the commission or board chosen under section 3101 "has the powers of a road commissioner".  A road commissioner, as the term is used elsewhere in Title 23, is a municipal official, and as such, must take the Oath of Office specified in the Maine Constitution.  Since 23 MRSA 3102 effectively equates the private road commissioner with the municipal road commissioner, and since 23 MRSA 3101(5) requires an (unspecified) oath, I would conclude that the private road commissioners should be sworn in the same manner as municipal road commissioners.

    That probably means having the Maine Oath of Office administered by a Notary Public or Dedimus Justice; in the case of a municipal road commissioner, the Town Clerk could administer the oath, but I'm not so sure there is any town-clerk-equivalent in a road association, so the Notary or Dedimus would be the safest thing.

    The oath is as follows:

    I, (name) do swear, that I will support the Constitution of the United States and of this State, so long as I shall continue a citizen thereof. So help me God.
    I (name) do swear, that I will faithfully discharge, to the best of my abilities, the duties incumbent on me as Road Commissioner according to the Constitution and laws of the State. So help me God.

    Now, you're probably asking yourself, "Does all this really matter? Do we really have to go to all that trouble?  Who's gonna care if we skip that part?"  The main issue here is to make sure that you have covered all the legal requirements.  If your commissioner or board isn't sworn, then they aren't technically a board or a commissioner.  If if they aren't a board or a commissioner, they don't actually have the authority to assess fees, collect money, bring suit in court on behalf of the association, or enjoy the limited immunity offered by the statute.  The last thing you want, when you find yourself in court trying to collect money owed your association, is that you have a simple technical defect that will forever bar you from collection those funds.  Or worse yet, you're being sued by an owner for simply doing your job as a board member or commissioner, but you can't claim the immunity granted under the law because of that same simple defect.

    If associations no longer need to have 3 signers every year , who sets the agenda ?

    You'd probably adopt bylaws to establish such things, or possibly just leave the agenda-setting to your commissioner/board.

    When do new commissioners get sworn?

    Upon election would be good, and certainly before taking any official actions.

    Without the necessity of checks and balances, like by-laws, a quorum, committees, what are they swearing to do ? To follow a majority vote, of a uninformed minority of possible participants.

    They are swearing to faithfully execute their office according to the laws of the State.

  • 05 May 2010 10:43 AM
    Reply # 335977 on 334499
    Deleted user
    Todd Tolhurst wrote:
    Alanna Brown wrote:Todd, Can a seasonal owner who doesn't pay for winter maintenance, give permission to others as in coyote hunters the right to use the road year round without having to contribute to winter maintains?


    Is he giving them the right to use the road (only), or is he allowing them the use of his seasonal camp/house/property? He can certainly allow family, friends, paying tenants or whomever to use his property however he sees fit, and those people would certainly have the right to use the road to access the property (assuming the property enjoys an easement for the road, of course).

    I assume that your association has decided not to charge this owner for winter maintenance because he does not use the road in the winter.  If this owner is causing the road to be used during the winter, it seems reasonable to me that he ought to pay some amount for winter maintenance.  That's a matter for your association to decide, of course. 


    He has owned land that actually doesn't abut the discontinued road. Some years ago he was somehow able to buy a right of way over a discontinued road that goes over our property to a property that only abutted the same discontinued road at the end of the discontinuance, as in just the width of the road. The wording in the discontinuance stated to the property line of _____ property. He bought a right of way over that owners property to a piece of land that was land locked far away from our discontinued road which included a right of way over our discontinued road. How this was possible was and is beyond us ! I hope you can follow ! This individuaL gives permission to travel the road to a few coyote hunters, who then are allowed to invite as many other coyote hunters to come and hunt in packs as they want. I use the word hunt loosely, as in they don't actually hunt as one might think of hunters as getting out and traversing the woods enjoying the great out doors. No they ram up and down roads hunting in grids,following their dogs by use of radio collars, as there is a loop hole in the leash laws for hunting dogs, they can actually run all over your private property and the property of others all over the state year round, as they are allowed to literally hunt dogs with dogs 24 hours a day if they want to. The owner doesn't have any structures on the property and does use the road through out all seasons and has actually made requests to have plowing done a certain way as to not, impinge upon his ability to come and go in the winter . Some times the road even gets plowed right to his right of way. He pays no winter maintenance fees, he even from time to time attends winter maintenance meetings and votes on matters while in attendance if the powers to be need his vote. Curious as to others thoughts on this as mine don't seem to matter!
    Last modified: 05 May 2010 10:43 AM | Deleted user
  • 05 May 2010 12:51 PM
    Reply # 336009 on 200110
    Deleted user
    none * wrote:

    Can our Non-Profit Association Dissolve? 

    Our deed clearly states that we are...{to accept active membership in the association... agree to be subject to and abide by the articles of Incorp and Bylaws..and all rules & regs adopted by the association.  It also says the association shall control and operate  our "Common Land" for recreational use only...the ownership of the easement of control of access to travel over the roadways....establish fees and charges for the operation and maintenance of  lands and facilites under its control.}  As previously inquired we have had numerous road issues, costing thousands of dollars with no end in sight.

    From the wording I feel that their must always be an association to govern the roads and common area.  Yet I am finding conflicting laws...under Title 13B non-profit it says it is indefinate... in another place I found it would take every lot owner to agree to dissolve...then I read that only majority need to vote?  If they can indeed dissolve, what happens to our deed...do they need to ammend all of the deeds?  What happens to road repair?  I also heard they intend on taking our deeded common area and splitting up ownership to abutting lot owners...I don't believe this is even legal. 

    Anyone know a good attorney on this type of stuff....we are willing to pay some money (not alot) to have all of the issues reviewed and put to rest.

    Thank you...about to lose my mind


    YES ! Cliff Goodall in Augusta
  • 05 May 2010 10:24 PM
    Reply # 336356 on 334483
    Deleted user
    Todd Tolhurst wrote:
    Alanna Brown wrote:Shoudn't this also include land owners who have a right to use the road to access their back land when they also have access from a town maintained road. As with a corner lot. Shoudn't these people be members of the association, and be notified of meetings and have a vote about work being done on the right of way, and all other matter that could impact them as abutting property owners? Alanna and Matt Brown

    If they have a easement over the road, or if they own a part of the road, then they would be part of any road association formed under the statute.  It does not matter if they also have another way to access their property.

    Do you mean right of way, when you say over the road?
    Last modified: 05 May 2010 10:24 PM | Deleted user
  • 05 May 2010 8:35 PM
    Reply # 336376 on 336356
    Deleted user
    Alanna Brown wrote:
    Do you mean right of way, when you say over the road?

    Yes, I mean if they have a right-of-way (which is a type of easement) to use the road, or if they are an owner of the road, then they would be included in the membership of a statutory road association.
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