Menu
Log in
Log in

    



 

Maine Alliance for Road Associations

Inclusion

  • 24 May 2025 6:38 AM
    Message # 13502900

    I have two questions pursuant to forming a statutory road agreement:

    First, There are 8 properties in our subdivision but two of them have addresses on the main road off of which our private road exits. Because they don't use the private road, we have never asked them for road maintenance fees. If we form a statutory road agreement, must they be included by law?

    Second, our desire to form an agreement stems from an LLC who bought a home strictly for use as a short term rental (no one residing permanently in the home) and the LLC is refusing to pay road maintenance fees even though it's deed requires it. If we meet and decide to form an SRA, can we file the agreement if the LLC refuses to sign the agreement going to the registry of deeds?

  • 25 May 2025 9:13 AM
    Reply # 13503105 on 13502900

    John, as long as those properties are not benefited by the private road they cannot be included in a Statutory Road Association. Title 23 Section 3101 reads in part "When 4 or more parcels of land are benefited by a private road, ......the owners of any 3 or more of the parcels, as long as at least 3 of the parcels are owned by different persons, may make written application to a notary public to call a meeting."  The words "benefited by a private road" are used in throughout the statute.  The term "benefited by" is not defined in the statute but the courts typically apply the plain language meaning to undefined terms in the statutes so if those parcels are not benefited by the private road you were not just being nice guys, you may have no choice in the matter.

    However, do the deeds of those two parcels require a contribution to road maintenance?  If so, you may not have a choice to exclude them.  In that case you may form a statutory association and then draft bylaws that excludes those two parcels from assessment unless they use the road for access to the parcels. 

    As for the remaining six parcels, do those deeds require a contribution to road maintenance? If so then you may apply the terms of Title 23 Section 3121 which reads in part  "....each property owner who shares the common benefit is responsible for a share of the cost of reasonable and necessary repairs to and maintenance of that private road....." as determined by whatever covenant or deed restriction that applies.  Under this statute you may be able to take legal action without forming a statutory road association because the statute requires contributions under the terms of the applicable covenant or restriction.  

    Section 3121 goes on to say "In the absence of any such agreement, restriction, covenant, declaration, road association or method elected under section 3101, each residential property owner, after reasonable due process and notice, shall share equally in the cost of reasonable and necessary repairs to and maintenance of the private road when the private road is the primary means of access to the benefited property.  So in any case state legislation is clear, there is a legal requirement for residential parcel owners benefited by a private road  to contribute to the maintenance of that road and a carefully worded letter to the offending owner may shake loose a reasonable payment.  Here is a link to the statute: https://legislature.maine.gov/statutes/23/title23sec3121.html 

    If you find that the deed provisions offer little guidance or may require forming a road association but are otherwise silent as to how to do so then following the specific requirements of Title 23 Sections 3101-3104 may be the best route to follow.  

    I believe it would be prudent for the owners along your road to invest in a few hours of legal advice to assure the long term financial viability of your road.  You do not need an attorney to form a Statutory Association but it would be good to have a firm footing on the matter before launching your efforts.  Let us know what you decide to do and the outcome so others may benefit from your experience.


  • 25 May 2025 11:26 AM
    Reply # 13503129 on 13502900

    The deeds of the two parcels in question do stipulate that they are obligated to pay equal shares of the road maintenance. So then, our Statutory Road Association Agreement would have to0 stipulate that those two parcels would be exempt from contribution, is that correct?

    The remaining 6 parcels also have the same wording about paying for road maintenance.


    Thank you so much for this excellent advice; I will certainly post the results of our labor; the concept of for profit only purchases in residential neighborhoods is taking housing away from local residents and is proliferating ownership of homes by entities that have no concern for the town itself.

  • 25 May 2025 11:38 AM
    Reply # 13503132 on 13502900

    Also, since the two properties not involved in the maintenance of the private road have a covenant about paying, does that change whether or not we invite them to our initial meeting/

  • 25 May 2025 1:14 PM
    Reply # 13503140 on 13502900
    Anonymous member (Administrator)

    While I respect Ray's opinion, I myself am not a fan of section 3121, for various reasons that I need not go into here.  But for one thing, while it does give you the right to sue a non-payer, it gives you no other enforcement option.  A Statutory road association, on the other hand, gives you the option of a Notice of Claim, which is much simpler.  If the non-payer wants to sell their land or wants to get approved for a loan, the Notice of Claim can be very effective.  But if the person still does not pay, you can then go to Small Claims Court if necessary.

    Section 3121 was intended to be a default when there is no road association or maintenance agreement, and the default position is that everyone pays equally.  As I see it, if you do have any road association or road maintenance agreement, section 3121 doesn't really apply except to say that property owners must abide by that agreement.  If there is no road association, section 3121 dictates that each owner pays an equal share.  Section 3101, on the other hand, allows the road association to come up with a formula that works best for them, which may or may not mean equal shares.

    Without having seen the deeds of the two properties on the main road, I'm not sure how either statute would apply.  They WOULD need to be notified of your initial meeting, as required by 23 MRS section 3101, paragraph 2, which 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, private way or bridge, the owners of any 3 or more of the parcels, as long as at least 3 of the parcels are owned by different persons, may make written application to a notary public to call a meeting. ... 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 ..."

    It sounds as if those two parcels would qualify as "benefited" parcels, ALL of which must be notified of the initial meeting (and probably of other meetings as well).  Usually, it would then be up to the members of the association to come up with a "fair and equitable" formula for assessing dues.  Some associations decide that properties that have other access do not have to pay, or pay at a lower rate, so long as they do not use the private road.  Others decide that because the private road provides access to the back of those lots, and is available if they wish to use it, that they pay like everyone else. 

    In your situation, it sounds like the deeds of those properties require that they pay an equal share.  Whether or not the association can decide that making them pay or not pay is "fair and equitable" would be a question for an attorney.  If everyone else in the association thinks they should not pay, then who would there be to object?  But if even one of the other members thinks it's unfair that those two do not pay, that could cause problems for the association.  It's definitely a sticky situation.

    Finally, there is no requirement that every owner "sign the agreement going to the registry of deeds."  For that matter, there is no requirement that a road association file anything with the registry of deeds, although doing so may make it easier for buyers when a property in the road association changes hands.  So no, refusal of the LLC to sign would not prevent you from forming a road association.  As a property "benefited" by the road, formation of a statutory road association makes them a member whether they want to be one or not, and obligates them to pay their assessed share.

                            The Maine Alliance for Road Associations


Powered by Wild Apricot Membership Software