This article discusses the obligation of owners to share in the maintenance and repair of private roads.

Repairs: who pays and how much?

Several homeowners share a private road located on an easement for ingress and egress to their residences. The private road is in need of repair.

Who is responsible for the repair and maintenance of the private road?

All the easement owners! [Calif. Civil Code §845]

However, the following points need to be considered when a private road repair issue arises:

  • who has the maintenance responsibility;
  • allocation of costs and arbitration;
  • secondary easements for maintenance; and
  • buying property burdened by a road easement.

Maintenance responsibility

In the case of a larger development like a condominium project or other common area development, maintenance provisions for the common area easement are included in the covenants, conditions and restrictions (CC&Rs).

Owners of appurtenant easements and easements in gross have the duty to maintain the easement they hold on other property. The owner of a private right-of-way easement is responsible for its maintenance, not the owner of the property subject to burdened by the easement. [CC §845(a)]

Co-owners (users) of an appurtenant easement may enter into an easement maintenance agreement. No standard form maintenance sharing agreement exists.

 

The maintenance of an easement includes snow removal if the task is necessary to provide access to the property by way of the easement.

If any owner fails to contribute under the agreement, the other owners must first make a written demand on the defaulting co-owner before taking legal action for reimbursement. [CC §845(b)]

If no maintenance agreement exists between the owners of the easement and the burdened land, the costs of maintenance are shared in proportion to the use made of the easement by each owner. [CC §845(c)]

Any of the easement owners may apply for a court arbitrator to apportion the maintenance costs if an agreement cannot be reached. [CC §845(c)]

The maintenance and repair of an easement owned by more than one person, or attached to parcels owned by different owners, includes snow removal if snow removal is:

  • not excluded from the maintenance and repair agreement; 

  • necessary to provide access to the properties by way of the easement; and 

  • approved by a vote of the property owners as called for in their maintenance agreement. [CC §845]

Sharing maintenance and repair costs

Maintaining and repairing a road means keeping it useable in its historic condition. This is different from improving a road, which means upgrading it.

Although all the easement owners must share the costs of maintaining the easement, no owner can further improve the easement and force nonconsenting owners to contribute to the costs of further improvements. [Holland v. Braun (1956) 139 CA2d 626]

The mathematical determination of each owner’s percentage of use is difficult. Each owner travels different distances on the road depending on where along the easement his property is located.

Some will travel the road more frequently than others. Some may ride motorcycles or drive compact cars which create little wear and tear. Others may drive large trucks and vans causing more wear and tear.

Although an easement appurtenant to a parcel may not be used for access, the existence and condition of the easement are part of the parcel’s value.

Under the circumstances surrounding the actual use of the easement by each owner or the use that is available and valuable to a parcel, an approximation of each owner’s percentage of use is the best mathematical allocation available. No California case exists to instruct the division of easement maintenance costs. However, cases from other states provide guidelines.

An approximation of each owner’s percentage of use of the easement is the best mathematical allocation available.

  For instance, two brothers each buy a portion of their parents’ farm. One brother’s property is granted an easement across the other brother’s property for use as a private road leading to the public highway.For many years the brothers share the use of the right of way peacefully. Eventually, the brothers begin to bicker about who should maintain the right of way and how to split the maintenance costs.

Nothing in the easement grant specifies how the repair expenses should be divided.

The brother whose farm is farthest from the public highway should pay a larger percentage of the costs since he uses the road to travel a greater distance.

An exact distribution of costs and labor is impossible to achieve among users of a private right of way. The approximation reached is 60% for the brother off the highway and 40% for the brother located on the highway. The allocation of costs is determined by the distance each landowner travels on the road. [CC §845(c)]

Allocation by arbitration

If co-owners of an easement cannot agree on the allocation of costs for repair and maintenance, an arbitrator will be appointed by the courts. The repairs can be done before or after the arbitrator is requested. [CC §845(c)]

The arbitrator’s decision can be contested by any of the owners. However, the court may enter the arbitrator’s award as a money judgment. The judgment may be enforced by any owner against a defaulting owner. [CC §845(c)]

A court-appointed arbitrator can divide maintenance costs equally, or by the distance between an owner’s driveway and the public road, or by frequency of use. [Healy v. Onstott (1987) 192 CA3d 612]

In arriving at the apportionment of maintenance costs, the arbitrator should take into account which residences are and which residences are not occupied year-round. [Healy, supra]

Co-owners of a right-of-way easement may not be compelled to help pay for the cost of upgrading a road beyond its historical condition without giving their consent to the improvements.

For example, a dirt road easement has fallen into a state of disrepair. Some of the easement owners widen the road, grade it, install culverts and cut trees. They demand contributions from other owners who did not consent to the improvement. The nonconsenting owners refuse to pay, claiming the easement was upgraded from its original condition.

The improvements were not made to simply repair the old road; they were essential to the building of a new and different road. The nonconsenting owners are not responsible for the costs of upgrading. [Holland, supra]

Secondary easements

In order to maintain an easement, an owner may have to enter a neighbor’s property. Secondary easements allow entry to make repairs so the easement may be used.

For example, an easement user places posts and reflectors along the edge of a narrow, steep right of way to prevent cars from going over the embankment.

The property owner subject to the easement removes the posts. The property owner finds them inconvenient even though they do not interfere with his use of his property or the road.However, an easement gives users the right to do what is necessary to maintain the safe use of the easement.Since the road adjoins a steep embankment, guard posts are reasonably necessary and not a needless burden on the property owner. Thus, the property owner has to replace the guard posts. [Herzog v. Grosso (1953) 41 C2d 219]  

Secondary easements allow entry onto a neighbor’s property so a shared right of way may be maintained.

Consider a group of landowners who grant an easement to the county for use as a public highway. Without permission, county officials drill a well on the highway to obtain subterranean water for watering the landscape.

Although the well does not interfere with road usage, it is not necessary to maintain the road by sprinkling it.

The easement is for a right of way only. The county does not have the right to drill wells on the landowners’ property to keep the road easement in repair. [Wright v. Austin (1904) 143 C 236]

Buying subject to an easement

An easement in gross is a personal right to use another’s property. It is held by an individual, not his property. It will not remain with the property and run with the land when the owner sells the property.

An easement runs with the land and thus is an appurtenance to the property it benefits. Even though an easement is located on neighboring property, it is transferred on the sale of the property it benefits as an appurtenant right. [CC §1104]

A right-of-way easement is conveyed along with the property it benefits unless it is excepted under the terms of the conveyance. [Lemos v. Farmin (1932) 128 CA 195]

Lenders sometimes have special requirements when lending on property that holds a right-of-way easement for ingress and egress.

Loan appraisers and underwriters want a written maintenance agreement. In the absence of a written agreement, the buyer may be asked to acknowledge he is aware of the nonexistence of a written agreement.

If the right of way is to be repaired as a condition to closing a sale on a parcel benefiting from the easement, payment for the repairs needs to be worked out between the seller and the other users of the easement.

Lenders often require private rights of way to be useable in all types of weather. Also, many lenders want the right of way to be consistent with other roads in the area. If the easement road is dirt and most of the roads in the area are paved, the lender may consider the property less valuable than a comparable property with a paved road.