Maine Alliance for Road Associations
After some research we now find that one lot was omitted from the statutory road association from inception.
The omitted property has a 50 ft right of way on the entire length of the road, owns about 980 ft along the road, and accesses their parking area from the road. They also benefit from the snow plowing of the road. The lot is clearly displayed on a subdivision plan as part of the subdivision which includes this road.
They have not been given meeting notices, they have not been issued statements of annual assessments. We have asked the Board of Directors for explanation and have not received any explanation.
Doesn’t this omission invalidate the entire statutory road association.?
What would the recommendation be on how the members should proceed?
Thank you in advance.
I am not an attorney, and cannot offer legal advice. My opinion is based on my reading of the Private Ways Statute, 23 M. R. S. §§3101 - 3104, and my experience researching and writing by-laws for our statutory road association. I recommend you consult with a qualified attorney before acting on my advice.
Do the owners of the omitted lot use your road? Is their parcel benefited by the road ?
If either answer is affirmative the following should apply.
Section 3101, subsection 2. Call of Meeting, states:
"Copies of the warrant or similar written notice must be mailed by means of the United States Postal Service to the owners of all the parcels benefited by the private road, private way or bridge at the addresses set forth in the municipal tax records at least 30 days before the date of the meeting."
The "owners of all the parcels benefited" were not notified thus failing to fulfill a key requirement of the Statute. I believe you are correct in your fear that your current road association does not qualify as statutory, i. e., was not formed according to the Statute.
Since many statutory components already appear to be in place, it may be a simple matter, in preparation for your next meeting, to carefully review §3101, have a notary issue a warrant, include the omitted owner, meet and vote your new statutory association as required.
I recommend a visit to our Resources Page to review Item 3, STATUTORY ROAD ASSN - "Warrant for First Meeting" by Roberta Manter.
The first thing that pops into my mind is Sunshine v Brett. There is a link to it on the MARA Resources page. I’m not an attorney and therefor cannot interpret law or give legal advice. What follows is just my inexpert opinion.
It appears to me that in Sunshine v Brett, where not all property owners were properly notified when the association was formed, the Court did not invalidate the entire association but did declare that the assessment could not be enforced against the person who complained about the error. He was NOT one of the ones who had not been notified. In his dissenting opinion, Justice Alexander said that since Brett had agreed to the initial terms of the road association, in which they agreed not to charge undeveloped lots, he was not injured by the fact that the owners of those lots were not notified, and had no real grounds for complaint. But that’s only the dissenting opinion. The rest of the Court determined that the road association could not collect from Brett:
“...the association failed to comply with the statutory requirement that it send notice of the initial meeting to all owners of parcels benefited by the private road. As a result, the association was not eligible to make assessments for the years in question.”
This sounds like the association could not properly have collected from anyone. But I never heard anything about the other members of the association demanding refunds. The dissenting opinion would support the position that anyone who agreed to sign on under the terms that undeveloped lots would not be charged, would not be injured by those lots not being notified. But your question is a bit different, in that it appears your road association’s formula should have required the omitted person to pay, which could have reduced everyone else’s dues somewhat.
Sunshine v Brett also refers to Tisdale, 2003 ME 68, ¶ 23, 822 A.2d 1136. In that decision, the Court said that the road association could not properly bill a member for years when they had collected from other members but were not yet formed as a statutory road association. I think that decision is applicable here, although the situation is a bit different. I would say that the road association cannot charge the omitted member for years when the association made no attempt to notify him. If they notify him now, and begin billing him in the NEXT billing cycle, hopefully that owner will agree to become a paying member. If not, then the best remedy might be to re-boot the association - start over as if it were a new association, with a Notice from a Notary, sent to EVERY owner of benefited property. If you have any unpaid members, the new association would not be able to pursue claims against them before the date when the new association came into being.
One thing you didn’t mention - does the lot in question have other access? If so, the Board may have thought this lot didn’t need to be a member. However, it sounds like they are using the road for access and are benefiting from maintenance and snow removal, so they should be a member.
I would recommend trying to avoid a lawsuit over it. It’s cheaper to be a neighbor than to be an enemy!
According to the majority opinion in Sunshine v. Brett, the parcel belonging to the omitted owner in your case certainly appears to be "benefited" by your road. On page 6, Discussion, B. Meaning of "Benefit" in the Private Ways Act, for instance, ¶14, "A parcel benefits from a private road if the parcel includes a easement creating a right to use the road." and, further, ¶15, "Construing the language in terms of the entire statutory scheme, we conclude that any parcel...that enjoys a right to use the private road is a benefited parcel." The conclusion discounts owners' "intensity of use of the way".
The majority also found, Page 10, ¶17, “The unambiguous notice requirements of 23 M. R. S. §3101 (2) that identify who must receive notice …establish the very essence of notice necessary to form a road association.” and then, ¶18, “Bearing these principles in mind, the record will only support a finding that the association failed to comply with the statutory requirement that it send notice of the initial meeting to all owners of parcels benefited by the private road. As a result, the association was not eligible to make assessments for the years in question.” ---in your case, from inception to date (my thought).
This finding may have direct bearing on your current situation. It appears to me that your association has never achieved statutory status. Since your association may be ineligible to make assessments, it certainly may not enforce collection of assessments according to §3104, Penalties and Process. You now have a well-meaning, but probably informal, road association. Because of your honest intent and the absence of apparent animosity, I doubt you will have owners demanding “refunds”.
I suggest you begin at the beginning with a request to Notary from owners of three properties to issue a warrant to form a statutory road association. Our road association was informal before it became statutory in 2016. At our organizational meeting we voted to dissolve all prior road associations and attempted to obtain the signatures of all owners of properties involved. We got all but one. The dissolution of prior associations will prevent any owner from seeking redress for past actions of your association. Again, please run all the above by a qualified attorney before acting.
Thank you all for your very thorough comments. You’ve confirmed my opinion.
Good point - I believe you are correct that the existing road association would qualify as an informal road association, and as such, anything it has already collected would be legal - you just would not be able to use the statutes to enforce collection. So your best bet probably is to dissolve that association and start a new one, following the statute to the letter.
The Maine Alliance for Road Associations