Articles
March 14, 2016

Creating a Road Maintenance Agreement

By: Kane Smart 

In Vermont where municipal roads generally keep to the low-lying and highly traveled areas, landowners who reside off the beaten path must maintain a private road or driveway to access their properties. These private roads often serve multiple properties, providing a common benefit of access to a number of neighbors. Informal and unwritten agreements sealed with a handshake are a common way of allocating responsibilities and costs of maintenance for these shared private roads. When neighbors relocate or relationships sour, however, these informal agreements fall apart, leaving some neighbors with a heavier burden to shoulder in order to maintain access to their properties.

Since 1984, Vermont law has recognized that “when several persons enjoy a common benefit, all must contribute rateably to the discharge of the burdens incident to the existence of the benefit.” Hubbard v. Bolieau, 144 Vt. 373, 375–76 (1984). In other words, neighbors who individually benefit from the use of a shared private road must each contribute “rateably” to its maintenance and upkeep. This rule of law was codified in 2012 through the passage of Act No. 123, in order to comply with Federal National Mortgage Association Announcement 8-01, which prohibited mortgage loans for properties accessed by a private road without a road maintenance agreement. 19 V.S.A. § 2701-02.

While Act No. 123 ensures that landowners can mortgage property served by a shared private road in the absence of a road maintenance agreement, it did not resolve the fundamental problem. It’s not clear what it means to contribute “rateably” to the costs of its maintenance.

To remove the uncertainty of this obligation, landowners should consider entering into a private road maintenance agreement with their neighbors. In so doing, landowners can control how much and to what extent they are responsible for contributing to the maintenance of a shared private road.  A road maintenance agreement can allocate responsibility for snow plowing, grading, repair, and for other significant undertakings. It can divide responsibility proportionately based on the length of the access road serving each property, the quantity of properties served by the access road, the frequency of use by each landowner, or on whatever basis the parties can agree. Rather than letting a court determine each party’s “rateable” contribution of disputed maintenance costs, the parties can define their own responsibilities. Not only does this avoid the unnecessary legal costs of dispute resolution, it vests the decision-making with the landowners, ultimately achieving a better result on all fronts.

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