Private Road Maintenance Agreements Explored
A private road maintenance agreement is essentially exactly what it sounds like: an agreement regarding the maintenance of a private road. The private road can be owned by an entity or by individuals and can serve a number of interest groups, including individuals with lake access, owners of resorts, homeowners’ associations, and others. And as you would expect, a private road maintenance agreement is needed when a private road serves multiple parties. This private road agreement is extremely important in Arizona because it will allow the members of the community that the road serves to share the cost of maintaining the road equally among themselves. The road maintenance agreement usually covers important aspects of road maintenance such as snow removal , pothole filling, crack sealing, grading, gravel spreading and road maintenance.
More specifically, if a road is maintained by a private party, the cost is incurred by that private entity and the entity controls the timing of maintenance. If that same road is maintained by several owners and their owners associations, the costs of the maintenance would be shared by all individuals involved. A private road maintenance agreement will specify the details of maintenance, who will pay for the maintenance, and how much owners must contribute to the costs associated with these activities.
Legal Necessities When Living on a Private Road in Arizona
Because Arizona is the Wild West when it comes to private roads it is extremely important to draft good private road maintenance documents. While there are no specific Arizona laws that address private road maintenance documents generally, there are laws that must be meet. For example, basic contract law principles apply and private road maintenance documents must be properly executed, notarized and recorded in the office of the county recorder. Following basic contract law principles, if the road maintenance documents are to be enforceable against the property owner and his or her heirs and assigns, the road maintenance documents should be recorded in the deed chain of title for each property.
Courts have held that the requirement for recording road maintenance documents in the chain of title is not a technical requirement but rather a substantive requirement. Old West Ranch, Inc. v. Ralson, 201 Ariz. 507, 510, 772 P.2d 569, 572 (App. 1989). In Old West Ranch, the Court specifically held that in order for a private road maintenance agreement to run with the land, it must also be recorded in the deed chain of title of each property. Also, the current trend in the U.S. is that the correct procedure for recording general easements requires recording in the grantor-grantee index. "However, with provisions for alternative indices of registration of easements being present in many jurisdictions, we see no reason why the index should be limited to that of the grantor-grantee index alone." Dillon v. Stewart, 914 P.2d 1196, 1205 (Okla. Ct. App. 1996). While Arizona does not have a provision allowing for alternative indices in the grantor-grantee index, the current trend is to allow recording in the grantor-grantee index and the grantee-grantor index.
Many counties in Arizona have adopted modern indexing systems, which allows room for multiple indexing with the type of instrument as well as under grantor-grantee index. One of the reasons indexing is so important to private road maintenance documents is the fact that the document will serve as the basis for foreclosure actions under their provisions. Another reason is that the history of the property is usually recorded in a private road maintenance instrument and these records are used to perfect title to a road. Without proper recording and indexing, outsiders will not be able to determine the priority of an easement or if the easement itself exists.
Must-Have Elements in Private Road Maintenance Agreements
Some of the key elements to include in a private road maintenance agreement are: (i) the parties to the agreement, (ii) which party is responsible for which type of work, (iii) how the costs of the work will be shared, (iv) how the costs will be determined, (v) how failures to pay will be addressed, (vi) any home-owners association lien, (vii) how the work will be funded if sufficient funds are not collected prior to commencement of work, (viii) how long the agreement will last, and (ix) how the agreement can be amended or terminated.
How to Address Disagreements in Your Road Maintenance Agreement
Difficulties are bound to arise between parties to private road maintenance agreements. It is important to have agreed upon the process for resolving disputes and how the costs will be divided if and when disagreements occur.
A process that works well for some private road agreements is a sit down meeting with all parties before costs are incurred. A good moderator, sometimes the same person serving as Road Manager or Road Representative, can bring the parties together to discuss the dispute. After estimating the cost of any repairs needed, the moderator should consult each party separately to come up with a working solution that divides the cost.
A court intervention by litigation is the last resort in settling a dispute, but there are procedures in place in Arizona for accomplishing a resolution. One way to resolve the dispute is via the Petition to Establish a Road Under A.R.S. 28-6706. This remedy is appropriate when one party obstructs traffic on a private or unpaved road by unnecessary maintenance or encroachment on the road. A requested injunction could force the person to remove the obstruction and allow the Road Manager to supervise the care of the road in the future. See Black & Montague v. Mohave County Bd. of Supervisors, 235 P.3d 1071 (Ariz. App. Div.1 2010)(Green, J.).
If a petition is filed and an agreement cannot be negotiated, there are attorneys’ fees that must be paid under Arizona Revised Statutes Section 12-1842. Once a petition has been filed, the action is treated as an action in equity as opposed to a statutory proceeding. The law and rules that deal with special proceedings will not apply in this case. The Petition should identify the petitioner, the date the road was established, the procedure used, the names of the adjacent property owners and whether an agreement can be worked out. If not, the petition should be clear whether contempt is being sought.
Other remedies contemplated by the Private Property Rights Preservation Act may also apply. See A.R.S. 12-1131 et. seq.. Nothing precludes seeking remedies such as the right to make improvements or assessments under ARS 12-1136.
Why Having a Private Road Maintenance Agreement is So Beneficial
Many property owners are under the impression that all burdens associated with the improvement and ongoing maintenance of the private roadways will be automatically imposed upon the neighbors. An owner may believe that a neighbor’s inability to financially contribute to road maintenance would be an illegal restraint preventing the other from access or the ability to reach the rest of the road. This is true regardless of whether the deprivation of access to a certain area was the result of a natural consequence of a landlocked condition, a deliberate act of the landowner, or if the lack of a clear public easement in no way intended to relieve the landowner of the obligation to share in the maintenance expense.
Such landowners expect the other members of the community to maintain the roadway without having a clear understanding of their legal obligations as shared owners . This ostrich approach to road maintenance (i.e. putting one’s head in the sand hoping it will be okay) is potentially damaging to the value of the property. First, an errant expectation of the other landowners as to the level of care and maintenance can lead to the development of a nuisance from excess growth and vegetation that puts neighbors at risk of fire. Second, secure written agreements between neighbors are crucial as they are the only agreement binding the owners’ rights to use the property.
The protections created by a well-structured private road maintenance agreement are critical to eliminating noncompliance among the members of the community. Road maintenance agreements properly created can address the need for regular maintenance and create a fair system of apportioning deferred maintenance expenses to all members, to the extent possible.
Essential Steps for Creating a Private Road Maintenance Agreement
The first step in drafting a private road maintenance agreement is to enlist the services of an attorney experienced in drafting such an agreement. The attorney will assist in determining whether the required statutory elements are present. An attorney may also be able to provide information regarding prior Arizona law, even in the absence of recorded private road maintenance agreements; and may know where to locate case law in other states. The next step is to customize the agreement to fit the specific situation and needs of the parties. The following elements must be accounted for in the agreement in order to satisfy the private road statute requirements: (1) An adequate description of the private road, to allow entry by an easement holder. An adequate description may consist of no more than a reference to a recorded instrument. However, the better description is one supported by a survey. (2) How maintenance is to be apportioned among the entitled parties to the private road easement. Generally, the owner of the dominant estate would be responsible for the costs of maintenance where another, such as an estate in common, own a reciprocal easement. (3) The frequency of the maintenance, if a schedule is to be followed, taking into account normal wear and tear and the level of benefit conferred on all the parties. Also consider whether the need for provisions pertaining to liability and indemnity should be addressed.
Common Pitfalls to Avoid in Road Maintenance Agreements
One of the mistakes I see when people are customizing their agreement is not being specific enough about the maintenance work to be done. For example, as I mentioned above, they may include language that requires work to be done as needed, but that fail to provide a list of work items that require maintenance. It makes sense to be clear about the repairs expected and required to avoid disagreements down the road. By including a list of repairs (with frequent occurrence ones noted) as well as a statement on how the costs are to be divided, you can prevent many disagreements.
Another issue I see often is using templates – without customization. Templates and samples found online for private road maintenance agreements rarely include the specific provisions that your road maintenance plan needs . I recommend using templates to start, but to then modify them so they fit your particular situation. By starting from something comprehensive, you’re more likely to avoid the common pitfalls that lead to confusion. Taking the time to edit and add to the foundation provided by a template makes sense.
A third common problem I see has to do with management of the agreement. Again, it’s a problem related to maintenance. Many people write the agreement and think that’s it for the details. However, as responsibilities change and different people move into the neighborhood (and volunteering wanes) private road maintenance agreements should be reevaluated and rewritten when needed. Allowing for flexibility in future revisions is a good idea. For example, one good idea is to add a clause allowing for the appointment of administrators if the original ones can’t fulfill the role anymore.