Maine Alliance for Road Associations

26 Nov 2010 3:46 PM

Quote

Message # 469929

Anonymous member

Where does a Road Commissioner get the authority to file a lien on the property for unpaid road maintenance fee assessments?

02 Dec 2010 8:15 AM

Quote

Reply # 473149 on 469929

Anonymous member

Peter Dunn wrote: Where does a Road Commissioner get the authority to file a lien on the property for unpaid road maintenance fee assessments?

From the Private Ways statute posted on this website:

5. Commissioner or board; repair and maintenance assessment. The owners of parcels of land benefited by a private road, private way or bridge at a meeting called pursuant to subsection 2 may choose a commissioner or board, to be sworn. By a majority vote, the owners may determine what repairs and maintenance are necessary and the materials to be furnished or amount of money to be paid by each owner for repairs and maintenance. The determination of each owner's share of the total cost must be fair and equitable. The commissioner or board shall report the outcome of all votes to all the owners by United States mail within 30 days. Special assessments for emergency repairs and maintenance may be made at a duly held meeting called for that purpose. Emergency repairs and maintenance are those actions necessary to maintain or restore the functionality of the private road, private way or bridge.

[ 2007, c. 625, §1 (NEW) .]

§3102. Commissioner's or board's duties; neglect of owners to pay

The commissioner or board chosen under section 3101, with respect to the private road, private way or bridge, has the powers of a road commissioner. If any owner, on requirement of the commissioner or board, neglects to furnish that owner's proportion of labor, materials or money, the same may be furnished by the other owners and recovered of the owner neglecting to pay in a civil action, together with costs of suit and reasonable attorney's fees. The commissioner's or board's apportioning of the cost of repairs to the road undertaken pursuant to the provisions of section 3101 may not exceed 1% of an individual owner's property valuation in any calendar year. [2007, c. 625, §2 (AMD).]

02 Dec 2010 8:42 AM

Quote

Reply # 473164 on 473149

Deleted user

Also:

§3103. Contracts for repair; assessments

The owners, at a meeting held under section 3101, may by a majority vote authorize a contract to be made for making repairs to and maintaining the private road, private way or bridge by the year or for a lesser time and may raise money for that purpose pursuant to section 3101, subsection 5. The commissioner or board shall collect the money as town taxes are collected and is liable for neglect of duty as town collectors are for similar neglects.

28 Feb 2011 2:04 PM

Quote

Reply # 534687 on 469929

Anonymous member

Has any other Road Association recorded any liens other than us?

28 Feb 2011 2:26 PM

Quote

Reply # 534701 on 469929

Anonymous member

Regarding Road Maintenance Fees,

23 M.S.R.A. Section 3103 says:

"The commissioner or board shall collect the money as town taxes are collected and is liable for neglect of duty as town collectors are for similar neglects. [2007, c. 625, §3 (AMD)."

35 M.S.R.A. Section 943 says:

"If the tax lien mortgage, together with interest and costs, shall not be paid within 18 months after the date of the filing of the tax lien certificate in the registry of deeds, the said tax lien mortgage shall be deemed to have been foreclosed and the right of redemption to have expired."

Has there been any action or interpretation of the law which would indicate that a Road Association would receive title to the property upon automatic foreclosure?

01 Mar 2011 7:18 AM

Quote

Reply # 535237 on 534701

Anonymous member

Peter Dunn wrote:
Regarding Road Maintenance Fees,

23 M.S.R.A. Section 3103 says:

"The commissioner or board shall collect the money as town taxes are collected and is liable for neglect of duty as town collectors are for similar neglects. [2007, c. 625, §3 (AMD)."

35 M.S.R.A. Section 943 says:

"If the tax lien mortgage, together with interest and costs, shall not be paid within 18 months after the date of the filing of the tax lien certificate in the registry of deeds, the said tax lien mortgage shall be deemed to have been foreclosed and the right of redemption to have expired."

Has there been any action or interpretation of the law which would indicate that a Road Association would receive title to the property upon automatic foreclosure?

No.

01 Mar 2011 9:18 AM

Quote

Reply # 535291 on 535237

Anonymous member

Betsy Connor Bowen wrote:
Peter Dunn wrote:
Regarding Road Maintenance Fees,

23 M.S.R.A. Section 3103 says:

"The commissioner or board shall collect the money as town taxes are collected and is liable for neglect of duty as town collectors are for similar neglects. [2007, c. 625, §3 (AMD)."

35 M.S.R.A. Section 943 says:

"If the tax lien mortgage, together with interest and costs, shall not be paid within 18 months after the date of the filing of the tax lien certificate in the registry of deeds, the said tax lien mortgage shall be deemed to have been foreclosed and the right of redemption to have expired."

Has there been any action or interpretation of the law which would indicate that a Road Association would receive title to the property upon automatic foreclosure?

No.

However, I investigated further, and even though I've never heard of such an argument, it seems it's a point that has not yet been clearly settled by a court (and perhaps should be). The reasoning as I understand it is this:If title 23 incorporates the municipal lien process (title 36 not title 35, by the way) then there is automatic foreclosure after 18 months from recording.

That is a powerful threat for an association.

Where this settles out seems to be that for the property owner (and their lender!) foreclosure (and the RA taking title) is actually a big risk.

Again, in the absence of a court decision stating that is what the statute means, the opinion I'm hearing is that not a settled point.

More to come, and very interesting.

01 Mar 2011 2:01 PM

Quote

Reply # 535525 on 535291

Anonymous member

Betsy Connor Bowen wrote:
Betsy Connor Bowen wrote:
Peter Dunn wrote:
Regarding Road Maintenance Fees,

23 M.S.R.A. Section 3103 says:

"The commissioner or board shall collect the money as town taxes are collected and is liable for neglect of duty as town collectors are for similar neglects. [2007, c. 625, §3 (AMD)."

35 M.S.R.A. Section 943 says:

"If the tax lien mortgage, together with interest and costs, shall not be paid within 18 months after the date of the filing of the tax lien certificate in the registry of deeds, the said tax lien mortgage shall be deemed to have been foreclosed and the right of redemption to have expired."

Has there been any action or interpretation of the law which would indicate that a Road Association would receive title to the property upon automatic foreclosure?

No.
However, I investigated further, and even though I've never heard of such an argument, it seems it's a point that has not yet been clearly settled by a court (and perhaps should be). The reasoning as I understand it is this:If title 23 incorporates the municipal lien process (title 36 not title 35, by the way) then there is automatic foreclosure after 18 months from recording.

That is a powerful threat for an association.

Where this settles out seems to be that for the property owner (and their lender!) foreclosure (and the RA taking title) is actually a big risk.

Again, in the absence of a court decision stating that is what the statute means, the opinion I'm hearing is that not a settled point.

More to come, and very interesting.

Also -- It's probably the fact that the cost of going through the courts would be far in excess of the amount in dispute, so the likelihood is the issue would not get litigated. Probably what would happen is that if an association filed a lien notice, then anyone buying or mortgaging would simply want to see the lien paid.

01 Mar 2011 3:02 PM

Quote

Reply # 535582 on 535525

Deleted user

Betsy Connor Bowen wrote:Also -- It's probably the fact that the cost of going through the courts would be far in excess of the amount in dispute, so the likelihood is the issue would not get litigated. Probably what would happen is that if an association filed a lien notice, then anyone buying or mortgaging would simply want to see the lien paid.

Quite true. I used to bring a number of foreclosure actions when I ran a condominium association. Almost always, the holder of the first mortgage would step in to assume the foreclosure and pay the association any amounts due (plus costs).

Almost always. We did end up owning a unit, however, when an out-of-state mortgage holder failed to respond until far too late.

Although I think it's possible for a road association to obtain title to a property through foreclosure, I think there could be some difficulties for unincorporated associations, in the sense that they are a somewhat nebulous legal entity, unlike a person or a corporation. That could make property transfers interesting.

Liens, Authority for

§3102. Commissioner's or board's duties; neglect of owners to pay

§3103. Contracts for repair; assessments