Jim Porter: Private road maintenance – who pays?
Special to the Sun
TRUCKEE, Calif. – Practicing law in a rural community, such as the Sierra, presents its own set of legal issues – different than a big city lawyer’s. As a mountain “dirt” lawyer, I see tons of boundary line disputes and private road maintenance disagreements. Here’s some law on the latter topic that may be helpful.
Assume these facts. Several homeowners live on a private road with an access easement to their homes. They don’t live in a regulated subdivision where an association generally maintains the roads. The bottom-line question is – of multiple owners, who is responsible to repair and maintain a private road.
It just so happens that Civil Code Section 845 addresses that situation. Section 845 is titled: “Owner of Right-of-Way Easement to Maintain It in Repair – Right of Owner to Apply to Court to Apportion Cost – Responsibility for Snow Removal.” Section 845 changed last year.
Whoever owns the roadway easement has a duty to maintain it, not necessarily the owner of the property burdened by the easement. Co-owners of an ingress and egress (access) easement may enter into an easement maintenance agreement, which is commonly done. In that case, the agreement controls.
But sometimes due to circumstances, several property owners share a roadway easement without a written agreement, and that’s where Section 845 comes into play. With no maintenance agreement, the costs of maintenance are shared “proportionally to the use made of the easement by each owner.”
If co-owners of the easement cannot agree on the allocation of costs for repair and maintenance, then the owner may sue in small claims court up to $10,000, but if the amount is higher they sue in Superior Court and are then referred to judicial arbitration. Maintenance and repair of an access easement includes snow removal but only under specified circumstances.
Maintenance vs. Improvements
While Section 845 allows a co-owner of an easement to seek reimbursement for repairs he or she makes to the road, no owner may improve the easement – to be distinguished from maintenance and repairs – and force non-consenting owners to contribute to the cost of improvements, like constructing drainage or paving the road. No California cases.
It’s interesting given the many battles over maintaining private roads, that there are no reported California cases on Section 845 clarifying how allocation should be made of easement maintenance costs. There’s one Nevada County case (Juniper Hills) I am aware of but it didn’t make it into the published Opinions.
Factors to consider are the distance traveled by each of the property owners to their home, but the arbitrator could also consider whether the residence is occupied year-round, the weight of the vehicles traveling and certainly the frequency of travel over the common road. Section 845 recites that any lawsuit to divvy up the costs may be brought before, during or after the maintenance work is performed. Written demand for reimbursement must first be made on any non-paying owner. There is no right of the prevailing party to recover attorney’s fees.
In sum, if you and others share a common private road, and you do not have a road maintenance agreement, Civil Code Section 845 is your legal guideline and recourse.
Jim Porter is an attorney with Porter Simon licensed in California and Nevada, with offices in Truckee and Tahoe City, California, and Reno, Nevada. He may be reached at email@example.com or at the firm’s website http://www.portersimon.com.