Maine Alliance for Road Associations
Our Resources page once offered a set of "Sample By-laws" containing a clause stating that members in arrears on maintenance fees were not permitted to vote on issues before the membership. Attorney Mary Denison took issue with this clause at the 7 Lakes Alliance Camp Road Maintenance Workshop, July 30, 2019. She said that no member (owner) may be denied the right to vote at a duly scheduled meeting because of delinquent dues owed to the Association. Our Sample By-laws have since been changed to reflect the above.
The Private Ways Statute, 23 M. R. S. §3101, paragraph 4, states, "Each parcel...represents one vote" and further, in paragraph 5, "By a majority vote of the owners present and voting in person or by written proxy or absentee ballot, the owners may determine...["fair and equitable" costs of repair and maintenance.]"
According to the statute, maintenance fees are determined by the owners. To deny a parcel or an owner a vote on issues before the membership violates the "fair and equitable" process intended by the Statute.
I am not aware of a specific court case. I hope this helps clarify this issue for you and your members.
As stated in the answer above, the legal advice on the subject was from Attorney Mary Denison, who specializes in real estate, land use, and municipal law, and who has been helping form statutory road associations for over 15 years. She will be one of our featured speakers at the MARA 2020 Road Association Conference in October (see the Events page.) We will also have Attorney John Cunningham as a speaker. He was past chair of the Real Estate Section of the Maine State Bar Association and is a past chair of its Title Standards Committee. If you sign up for the conference, that would give you the opportunity to ask them both, without having to pay at attorneys' usual hourly rate, and they are two of the best when it comes to Road Association law.
My non-attorney opinion is that we split off from England because we objected to taxation without representation. There are cases where someone thinks road association funds are being spent improperly, and therefore have a legitimate reason for not wanting to pay. They should be able to express their concerns with a vote.
As for undeveloped lots that do not pay and have no vote, I'm not sure how the law would view that - again, that would be a question for the attorneys. My non-attorney opinion would be that as long as everyone agrees on it, you might be okay, but that doesn't guarantee what would happen if one of those undeveloped lots changed hands and the new owner objected. On re-reading the law, I find it's pretty clear that each parcel is to get a vote. So if it came to a legal challenge, you'd have a hard time defending withholding a vote from anyone.
MARA is indeed fortunate to have Attorneys Mary Denison and John Cunningham available at our conference this October 3rd to answer vexing legal questions related to the Private Ways Statute.
Regarding undeveloped lots, although not an attorney, I believe the amount assessed and the degree of development of a parcel are irrelevant in determining the owner's right to vote. By statute, the owner of any parcel within the association is permitted, and therefore the road association must offer, the three means to vote on the issues before the membership set forth in 23 M.R.S. §3101, paragraph 5, as stated in my previous reply.
On our private gravel road, we have a large parcel comprising three undeveloped lots, one of which has a small storage shed, that was apportioned 1/2 annual share of maintenance costs in our by-laws by the membership. This portion will increase to one share once a residence is in place. Previously, the owner had not paid approved maintenance fees for many years in our "informal" road association and, in April 2016, did not respond to Notice of the Organizational Meeting for our "statutory" association, nor to subsequent notifications of meetings, assessments, and late payment penalties.
We have been advised by John Cunningham, regardless of response, to continue mailing the delinquent owner via Certified Mail, Return Receipt Requested, at the address listed at the Town Tax Office, the 30 day notice of Annual and Special Meetings with the Proposed Budget, Meeting Agenda, and a Proxy/Absentee Voting Ballot; also, to continue subsequent mailings of Notices of Assessment, and all documents relating to Notices of Claim. Occasionally, the owner will sign the green card at delivery but most often the envelope is returned unopened and filed for future use.
We believe these documented actions will allow our road association to establish a "fair and equitable" process when asking the court to honor our many Notices of Claim against the property at some future point.
We have also had problems with non-payers refusing delivery of notices sent by Certified Mail. The statute only requires mailing by first class mail, but that also gives no assurance of delivery. Solution: Instead of sending it by Certified Mail, this year we sent notices by Registered Mail. That way the recipient doesn't have to sign for it, but the postal service provides proof of delivery.
Useful solution. Thank you. I might add that our unopened returned Certified RRR envelopes have multiple delivery attempts documented on the outside of the envelope by the mail carrier.
We use UPS and it gives proof of delivery.
The Maine Alliance for Road Associations