By: D. Keith Dunnagan, Esq.
October 15, 2024
In today's article we will look at road maintenance agreements. Once the easement is established and multiple parties are benefiting from the access, how is the responsibility to maintain the property split amongst the benefited parties.
Fortunately, here in California there is at least some basic protections related to road maintenance. California Civil Code Section 845 provides that when there is a private roadway for the benefit of multiple owners the cost of the maintaining the road proportionately to the use made by the easement. The statute also provides a remedy for an action for contribution which allows the paying owners to recover a proportionate share from the non-paying owners. This is a step in the right direction as it allows some simple paths to collect for maintenance costs, but it is not sufficient to have owners fully protected for most types of problems.
Road Maintenance agreements are highly advisable. They are essentially contracts between parcels of property that run with the land and provide the framework on how disputes and maintenance and improvement questions are answered.
Well developed road maintenance agreements cover a multitude of functions. Obviously the most important is cost sharing for improvements and maintenance between the benefited owners. But also, decision making processes are incorporated, emergency repair allowances and recoupment of expenses from the other owners, use restrictions to prevent expansion of access rights and lien rights are just a few of items that road maintenance agreements cover.
The decision making power is a significant issue to cover. It provides the basis for how many owners' approval is required prior to making certain types of improvements and repairs to a common access. Do the parties want to require unanimous consent, majority consent or some other approval number to justify taking on the project? What constitutes an emergency to allow an owner to unilaterally repair the access road and seek contribution from the other owners? Can a majority vote of the owners justify a change in the access road from gravel to asphalt?
These are the types of questions that road maintenance agreements seek to answer. They can be time consuming on the front end to develop especially if there is a common private roadway without a road maintenance agreement. But in the end getting the maintenance questions answered prior to a catastrophe can save the owners significant time and money in trying to get others to pay their fair share to maintain a common road.
The information presented in this article is not to be taken as legal advice. Every situation is different. If you are facing a legal issue of any kind, get competent legal advice in your state immediately so that you can determine your best options.
