Maine Alliance for Road Associations
The current by laws for our road association (written as a non profit corporation) indicate the following :
"The Beach Road Association shall mean and refer to parcels of land situated in Windham in the County of Cumberland and State of Maine and designated as those lots located along Orchard, Beach, and Brook roads and any additions thereto from other real estate described on the Assessors Maps of the Town of Windham on file in the Town Office. NOTE: Brook Road has been renamed by the Town of WIndham as Brentwood Road but this change had not been made to the Beach Road Association by Laws.
An owner of a lot shall mean and refer to each owner(whether an individual person, corporation, partnership or other legal entity) of record of a lot as shown on said Assessors Maps...."
Currently, an owner of a lot located along Orchard Road indicated that since she did not use Orchard Road to access her property, she wanted to be exempt from membership in the association, and thereby also exempt from paying dues to the association. The BOD is considering her request.
A second owner, whose property is also located on Orchard Road also own property located along what is now Brentwood Road. These owners access their property, where they live (a property that lies along Orchard Road) via Cottage Road. She is currently serving as Treasurer of the BRA.
At the last board meeting this owner indicated that she and her husband were considering not continuing as members of the BRA since they do not utilize any roads with in the association to reach their residence.
Is their membership in the association determined by the by laws or by the assessors maps? In other words, if the by laws were re written and approved by the membership, and stated that an " Owner of a Lot" is determined by the fact that they access their lot via a road within the association, then this owner would be exempt for ownership in the association, right? As the by laws currently stand, though, it would seem to me that this owner is a member of the association, and is subject to assessment fees as determined by the association, right?
Finally, if this owner is deemed to not be a member of the association, I would surmise that she would in effect not be able to continue to serve as the Treasurer, right?
If your nonprofit association was established when the subdivision was created, and membership mandated by deed provisions then it is the provisions of the deed that establishes membership. Voluntary withdrawal may not be recognized by the courts. In that case, withdrawing parcel owners (or simply owners refusing to pay) may want to carefully consider the financial consequences of their unilateral withdrawal should the association take action to enforce the founding documents. Your board may best be advised to first examine the founding documents which include deed restrictions, articles of incorporation and bylaws and seek legal counsel if there is still confusion or uncertainty. If your nonprofit membership is voluntary and follows statutory road association provisions (the Maine Private Ways Act), for its authority to assess and collect maintenance costs, examining the statute will help address the issue. The primary task may be determining if the parcel is "....benefitted by a private road....." Maine Title 23 §3101.
In either case, if there seems to be a fair and equitable reason to consider an owner’s request for relief, and your founding documents allow flexibility in assessment apportionment, your board may decide to establish a policy for relief for those parcels involved via the apportionment process. However, an owner’s choice to access a property that does not involve the subdivision’s roadways, via a back driveway leading to a different road for example, is not necessarily a good reason for relief and may not be fair and equitable to the other members of the association. The board might want to consider how the general public, guests, deliveries, or emergency services would typically approach the parcel and thus if the parcel is or is not benefitted by the private roadways.
We have had a couple of members question whether they had to pay if they did not use the association road for access, but accessed their property from the other side. I think the post above has a good point about the provisions of the deed establishing membership. The Statute, 23 MRS 3101 (2) says, "When 4 or more parcels of land are benefited by a private road, private way or bridge as an easement or by fee ownership of the private road..." the owners may call a meeting to form a road association and that, "owners of all the parcels benefited by the private road, private way" must be notified.
What we have told them is that if they are willing to sign a statement saying they have no intention of using the association road, and if they block off any existing driveway that connects them to the association road, we will not require that they pay dues. But there remains the potential that they could at some time change their minds, and if that happens and they are seen to be in fact using the association road, then they will be required to pay. At this year's MARA Conference, I recall one of the attorneys saying that the problem with that is that the other owners have paid to build the road, so why should one member be allowed to wait until that expense has been incurred, and then decide to be a member?
Perhaps it should be handled like the "tree growth" tax program - you get excused from paying as long as you never use the road, but if you later decide to give up the exemption, you have to pay a penalty. Just an idea - what do others think?
The Maine Alliance for Road Associations