Maine is blessed with huge amounts of private land, allowing residents and nonresidents alike to find and enjoy a little piece of the way life should be. While the owners of these parcels may have sought them out for attributes such as scenic vistas, lake access, or just relative solitude, these parcels are often on private roads that are not maintained by the state, or any county or municipality. At some point, every road will need maintenance, which can be a costly and time consuming endeavor. As is often the case, an ounce of prevention is worth a pound of cure. A road association, formed by the owners of lots benefitted by a private road or easement, can be a cost effective and efficient way for those owners to manage and maintain their road.
There are three types of possible road associations in Maine: (1) informal associations; (2) statutory associations; and (3) nonprofit corporation associations. Informal associations can be formed by agreement, either written or not, among landowners who voluntarily agree to share maintenance expenses. These often work where there are a few like-minded and motivated individuals. However, the informality can create a number of problems, including the collection of overdue fees and liability issues. Often standard homeowner’s insurance will not cover activities related to a road association, and the members of unincorporated associations may incur personal liability, which may be avoided to a considerable extent by the other forms of organization.
Where a private road serves four or more parcels, three of the owners can initiate a statutory association. The statutory route is often taken where recalcitrant owners refuse to contribute to maintenance of a common way. These associations require strict conformance with a number of statutory requirements which are laid out in Maine’s Private Ways Act (23 M.R.S. section 3101 et seq.). However, they can be set up relatively quickly (after complying with statutory notice provisions). They also do not require a written agreement among owners, although such agreements are generally advisable. Statutory road associations may buy liability insurance to protect their members against lawsuits.
Road users may also form a non-profit corporation, which requires chartering through the Maine Secretary of State and the adoption of by-laws and other governing documents. Organizing such incorporated associations often involves the creation of easements in favor of the corporate road association on all the lots burdened by the road. The governing documents create contractual obligations among the participants without the requirement of following all the statutory road association procedures, and can be customized for the circumstances of benefitted owners. This type of association is often utilized in new subdivisions that employ deed restrictions and covenants requiring association membership.
There are other factors such as enforcement and liability issues that should be addressed when considering which type of road association is best for a particular situation. Landowners considering associating to address private road maintenance and use should consult a qualified real estate attorney for more information.