Understanding Private Road Maintenance

August 23, 2022 | Category: Access Easement, BPE Newsletter, Business Law, Real Estate, SBA

Understanding Private Road Maintenance

By: Trey Van Dyke (3L)

August 23, 2022

Individuals may share certain pieces of real property for specified uses, such as using a common driveway to access housing developed on neighboring parcels of land. The shared use of the same property creates what is known as an easement or right-of-way. Ordinarily, the owner of a piece of property, on which an easement is created for use by others, is responsible for the maintenance of the easement. However, users of the easement may agree to maintain it (Rose v. Peters (1943) 59 Cal.App.2d 833, 835.) In 1939, the California Legislature established the right of owners of an easement to file an action to require other owners to share the cost of maintaining and repairing the easement. The legislature also provided for a method of apportioning costs if no agreement is reached among owners of an easement. These have been codified in Civil Code section 845.

California Civil Code § 845 states:

(a) The owner of any easement in the nature of a private right-of-way, or of any land to which any such easement is attached, shall maintain it in repair.

(b) If the easement is owned by more than one person, or is attached to parcels of land under different ownership, the cost of maintaining it in repair shall be shared by each owner of the easement or the owners of the parcels of land, as the case may be, pursuant to the terms of any agreement entered into by the parties for that purpose. In the absence of an agreement, the cost shall be shared proportionately to the use made of the easement by each owner.

(c) If any owner refuses to perform, or fails after demand in writing to pay the owner’s proportion of the cost, an action to recover that owner’s share of the cost, or for specific performance or contribution, may be brought by the other owners, either jointly or severally. (Civ. Code, § 845 (Current through Chapter 58 with the exception of Chapter 21 of the 2022 Regular Session).)

A few key points to consider in interpreting this statute. This law covers private right-of-way easements not public easements. Before a court holds any obligations to parties via this law, it must first determine that a valid easement exists. If there are other owners of an easement in dispute before the court who are not brought into the action, a court may refuse to make a complete determination of the respective rights of all owners of the easement (Whitson v. Goudeseune (1955) 137 Cal.App.2d 445, 446 [290 P.2d 590].) Also, while easement owners may be compelled to contribute to the cost of keeping the right-of-way in repair, the law does not require nonconsenting owners to contribute to costs of making major improvements to the easement, such as paving it (Holland v. Braun (1956) 139 Cal.App.2d 626, 626 [294 P.2d 51].)

The road maintenance agreement is essentially a contractual agreement between the owners of a private right-of-way easement, and it therefore follows the fundamental doctrines of contract law. The most fundamental aspect of contract law is consenting to the terms of the agreement. Courts typically do not stray away from the terms that parties agreed to when they entered into a contract, unless there are significant issues of unfairness, or inequity involved. However, in cases where some easement owners seek costs from nonconsenting easement owners for maintenance: Cal. Civ. Code § 845, common law, and property law converge to provide for a much more complicated legal situation. Several factual and legal issues are involved that include, but are not limited to: defining what proportionality of cost-sharing is fair based on both where the easement is situated and how much the each easement owner actually uses the easement, if there are any agreements and if those agreements are established in such a way that they run with the land or not, and how an action is brought forth procedurally: including what relief is requested or permitted, what parties are named, and what court or arbitral authority is presiding.

What may seem like a simple concept and a simple statute unfortunately sometimes turns into a protracted legal battle between neighbors in rural communities. Road maintenance agreements are sometimes tricky situations because they lie at a proverbial fork in the road between contract law and property law, and there are certain procedural requirements that must be met when asking the court for relief of this kind. As is often the case in contract-centered disputes, effective legal advice up-front can save parties on all sides of the agreement a lot of headache and cost down that proverbial road.

The information presented in this Article is not to be taken as legal advice. Every person’s 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.

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