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Maine Alliance for Road Associations

Enforcement of statutes

  • 09 Oct 2020 5:35 AM
    Message # 9293728

    We have a statutory road association and a member asked a question regarding some of the rules included in Maine Title 23.  The question is: "if the Maine statutes do not allow a property owner to be denied a vote in road association meetings, or if minutes of meetings must be provided to all members within 30 days, does the State offer any mechanism for enforcement of the rules"?  

  • 09 Oct 2020 6:25 AM
    Reply # 9293804 on 9293728
    Anonymous member (Administrator)

    Good Question. I assume you are referring to the Maine Private Ways Statute (PWS), Title 23, Maine Revised Statutes (M. R. S.), Sections (§§) 3101-3106, commonly noted, 23 M. R. S. § 3101-3106.

    The mechanism for enforcement resides in § 3102 and § 3104 of the PWS. These sections render the Statute and the rules and procedures set forth therein self-enforcing. I will expand on this statement in an attempt to achieve clarity.

    In § 3104, Penalties and process, if your association plays by the rules, using a "fair and equitable" process to assign all owners a share of the costs of road repair and maintenance, then owners who do not pay their fair share will be held responsible and "any money owed pursuant to §§ 3101-3103 is an obligation that is personal to the owners of the subject parcels, ..., and also burdens the parcel and runs with the land upon the transfer of any owner's interest."  Heavy stuff!

    Further, in § 3102, the compliant owners may recover in a civil action the delinquent owner's portion "of labor, materials or money (owed) together with costs of suit and reasonable attorney fees". (my italics) More heavy stuff with sharp teeth!

    Conversely, as the two attorneys who spoke at MARA Conference 2020 emphasized, if the Private Ways Statute is not followed to the letter, a sharp attorney for the delinquent owner may point out to the judge that a "fair and equitable" process (to include minutes within 30 days, commissioner or board "to be sworn") was not followed and his client cannot, therefore, be held to the penalties detailed above.

    Playing by the rules within the Statute is "enforced" by the reward of recovering the unpaid maintenance fees, holding the offending owner accountable, and seeing justice prevail!

    Last modified: 10 Oct 2020 6:04 AM | Anonymous member (Administrator)
  • 10 Oct 2020 3:08 PM
    Reply # 9295960 on 9293728
    Anonymous member (Administrator)

    I think the question was specifically about enforcing the rules re: allowing every member to vote, and sending out the minutes within 30 days.  Unlike the question of non-payment of dues, where enforcement is needed in order to collect money that is due, there would be little monetary incentive for a person to sue a road association because they were denied a vote or because they didn't get the minutes within 30 days.  In order to do so he would have to suffer the considerable expense of going to court, and there would be no money to gain thereby. 

    If that member had not paid his dues and the road association sued him to recover the unpaid amount, he could perhaps use those infractions to try to defend himself from the collection action.  In that case, both he and the road association would suffer court costs, and likely neither would gain any monetary award.  (My inexpert non-attorney opinion.)  So that should give some incentive to road associations to make sure they do everything by the letter of the law, as our attorneys at the Conference emphasized.

    But there is no specific enforcement agency to whom a member could turn to get the rules enforced so that he could vote even if he had not paid his dues, or to enforce the minutes being sent to him within 30 days.  This is the sort of case where I would strongly recommend dispute mediation to work out the differences that caused the problem.  The services of a professional mediator are much less expensive than resorting to court action, and have a high rate of successfully resolving disputes.

    As for bringing in the phrase "to be sworn," both attorneys John Cunningham and Mary Denison expressed their opinion that the requirement in the law is so vague and archaic it would be unlikely any judge would try to enforce it if it ever came up as an objection to the validity of a road association.

  • 11 Oct 2020 5:17 AM
    Reply # 9296558 on 9293728

    Thank you, I appreciate your responses.

  • 11 Oct 2020 5:53 AM
    Reply # 9296573 on 9293728
    Anonymous member (Administrator)

    Thank you, Roberta, for refocusing and clarifying Harold's original question.

    Both of you, my apologies for missing the opinions of both attorneys on the archaic nature of "to be sworn". As President/Road Commissioner of our statutory road association, I make it a point "to be sworn" annually. Perhaps I am pertinacious in this respect.

    Along with Roberta, I want to stress that both attorneys, but particularly John Cunningham, emphasized being attentive and adherent to the details of the Statute for the reasons I suggested above. 

    Last modified: 11 Oct 2020 6:16 AM | Anonymous member (Administrator)
  • 11 Oct 2020 3:46 PM
    Reply # 9297308 on 9293728
    Anonymous member (Administrator)

    To be accurate, I must admit that the choice of the term "archaic" was my own.  I based it on the fact that Attorney John Cunningham said something to the effect that the reason the words "to be sworn" appeared in the law at all was because that wording had been in a prior version of the law that dated back (I believe) to the 1800's.

    If it ever did come up in court as a possible objection to the validity of a road association, I would think an attorney might question exactly what the law requires, when it does not say who is to do the swearing in, or when, or what they are to swear to, or how the swearing in is to be documented.  Is there anything to prevent a board member from simply raising his hand after being voted in, and saying to those members present, "I swear to fulfill my duties as a board member?"  For that matter, the wording of the law is so vague, could a board member simply testify in court that he gets sworn at regularly by disgruntled members?

    When our road association was first formed, we did have a notary swear in the board members, but I'm not sure if there was any documentation of that action.  I recently asked the notary at my bank if she could swear in our board members, and she looked baffled and said, "No, that's not something we do."

    The bottom line is, it would certainly be a good idea to have the board members sworn in by a notary, and to document the swearing in, just in case it should ever come up as a question.  But if a road association has not done so, it's probably not a reason to panic.

  • 12 Oct 2020 5:01 AM
    Reply # 9298475 on 9293728

    Again, I thank you and appreciate your responses to my questions.  My MARA membership fee and the opportunity to attend the MARA Conference was money absolutely well spent!  

  • 12 Oct 2020 6:32 AM
    Reply # 9298588 on 9293728
    Anonymous member (Administrator)

    Attached is the document I use "to be sworn". We keep the notarized document with the records of the Annual Meeting. No need to place in the Registry, of course. This could easily be modified for Board members. 

    1 file
    Last modified: 14 Oct 2020 8:42 AM | Anonymous member (Administrator)
  • 12 Oct 2020 1:48 PM
    Reply # 9299259 on 9293728
    Anonymous member (Administrator)

    Sandy -

    I really like your form for recording swearing in, especially its mention of the U.S. and State Constitutions. I hope the officers have actually read them to know what they are swearing to uphold. But in cases where the association's road is also a "public easement," (this is the exception, rather than the rule,) I believe there is a Constitutional conflict. How can private individuals be compelled to spend their private funds to maintain a road for the public's use, especially when they are already compelled to pay taxes to maintain the town's public roads?

    23 MRSA Section 3101 paragraph 1A does say that road associations can be formed on "private ways" as defined in section 23 MRSA 3021, that is, public easements. But as I see it, the state law is in conflict with the Constitution.

    There are two ways a private road can become a public easement. The first is if it was a town road that was discontinued after 1965 or abandoned after 1976, either of which automatically makes it a public easement. This law was put in place to assure that no one would be land locked by the discontinuance of roads. It serves towns well, because they often take that as meaning that they don't have to compensate land owners for loss of access when the road is discontinued. But it also creates a road that the public can continue to use freely with no liability and no maintenance obligation. The resulting public road with no public maintenance "will inevitably be destroyed," as determined by the Maine Supreme Court in Jordan v. Canton. The Court said that this destruction of access is a "taking" that requires both due process and just compensation in order to satisfy the Constitution.

    The other way a private road can become a public easement is if the Town and the road association have agreed to designate it as a public easement so the Town can provide snow removal with public funds on a private road. Public funds can't constitutionally be used to maintain private roads, so this "loophole" was used to make it legal by saying the public can use the road. But that leaves the road association suffering the cost of the extra wear and tear on the road, plus the liability. This is one of the injustices Maine ROADWays has been fighting for years.

    So while I am very much in favor of swearing to uphold the State and U.S Constitutions, that does highlight the Constitutional conflict when it comes to road associations on public easements.

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