Benefits and Terms of Private Road Maintenance Agreements

Do you want to live off the beaten path? Have your own little piece of heaven out past where the paved road ends? If so, you’re going to have to figure out how to get there, and not living on a publicly maintained road may involve the far less romantic reality of a private road maintenance agreement. If you need to cross someone else’s property to access your home, then you may be looking at obtaining an access or ingress/egress easement across that other property. However, if multiple owners use or are going to use an access or ingress/egress easement, the parties involved are going to find out that roads – dirt or gravel, paved or otherwise - do not maintain themselves. When multiple owners are involved, you should consider a private road maintenance agreement. It is possible to build the private road maintenance terms into the initial ingress/egress easement with some foresight, or to do the private road maintenance agreement contemporaneously with the ingress/egress easement, but the private road maintenance agreement often gets forgotten until the road surface starts to deteriorate. Once the idyllic country road starts to look like the surface of the moon, then the parties involved start looking at each other about repairs, who is going to do them, and how the cost of those repairs is going to be allocated. It is much better to have a private road maintenance agreement in place before the road deteriorates so that everyone knows what is expected of the other parties, although one can also be put in place as part of resolving a dispute about road maintenance.

Maintenance Responsibilities and Construction Standards            

A private road maintenance agreement generally sets out that the maintenance of the road is the mutual responsibility of certain owners. This is usually all of the owners along the road, but the responsibilities can be delegated to one majority owner, or by percentage of ownership or use. The agreement also should specify the minimum construction standards required, including but not limited to the type of surface, minimum thickness, the road width, vertical and horizontal clearances to be maintained, and any provisions for drainage.

Payment or Pre-Payment of Road Maintenance Costs

Some of the most important terms in a private road maintenance agreement involve payment and enforcement of payment. A lot of easements and agreements only say that the costs will be shared equally, and while this is easier to get signed it kicks the can down the road on serious issues such as how the costs of maintenance are determined, who determines them, and what can be done if someone does not pay their fair share of the maintenance costs. Similarly, while it is possible to have the costs of repairs paid at the time work is completed, road maintenance is usually an inevitable cost, and it can be more efficient to create a regime for pre-payment of estimated road maintenance costs.

All of these factors and many more may need to be addressed in a private road maintenance agreement depending on the variables involved, including but not limited to number of users, size, topography, jurisdiction, location, and materials involved, in your particular private road. If you think you have or may need an easement, right of way, or private road maintenance agreement, the experienced attorneys in Pender & Coward’s Eminent Domain / Right of Way Practice Group can help you.

Ross Greene is a firm shareholder and chair of the firm’s Eminent Domain / Right of Way Practice Group. He focuses his practice in the areas of eminent domain, right of way, real estate, wills, trusts, estates, and business matters.