Amendment to a Private Road Maintenance Agreement

[Aranya]

What is the name of your state? California

If a private road agreement doesn't specify any terms for amending the agreement (such as a unanimous vote or a 2/3 vote), then how can it be amended?

 

[FlyingRon]

Absent an amendment procedure in the contract (or perhaps in other CCRs recorded that cover this property), you'd need to get all of the parties to the agreement to agree to change it.

 

[154NH773]

In the event that you cannot get all parties to agree, you can ask a court to impose conditions in a “quiet title” action.

 

[Aranya]

Yes, I was thinking that this is the case. I recently bought a property and it seems that the road association has made numerous unofficial amendments. For example, they raised the annual fee. One property owner said that they need a unanimous vote to raise the fee (the amount is specified in the road agreement), but others disagreed. So what the property owner was saying is correct?

 

[LdiJ]

Yes, I was thinking that this is the case. I recently bought a property and it seems that the road association has made numerous unofficial amendments. For example, they raised the annual fee. One property owner said that they need a unanimous vote to raise the fee (the amount is specified in the road agreement), but others disagreed. So what the property owner was saying is correct?

Absent something in the agreement that specifies differently, yes the property owner is correct, everyone would have to agree.

 

[Aranya]

Thanks

 

[HRZ]

MY sister has a home subject to a private road ..nothing seems to suit everybody!,

As an aside I could argue that home at far end of road uses 100% and the first home on road might use a mere 5%.

Absent reading cases on point, the law you cite does not give solid answers as to division.

 

[quincy]

I gave an example of easement costs for Aranya in Aranya's second thread, to show why the dominant tenant at the end of the easement generally is expected to pay more. Since that thread was deleted, here it is again:

There are 3 houses on an easement. The easement runs through the property owned by servient tenant A, the first house on the easement. Dominant tenant B is the second house. Dominant tenant C is the last house at the end of the easement.

A pays the least because A only uses portion A of the easement. B uses both A and B so he pays a portion of A and a portion of B. C pays the most because C uses a portion of A and a portion of B and all of C to get to his house at the end of the easement.

 

[Aranya]

Sorry, here is my post from another thread:


If there is an agreement but it doesn’t have a cost sharing section or allocation formula, does the above code apply (that the cost shall be shared proportionately) or is a property owner obligated to follow the allocation formula that the road association has been using even though it isn’t part of the agreement?

For example, my road association divides maintenance costs like this: the road maintenance bill is divided into different areas in which work in done on the road. If some work is done past where your driveway lies, you pay nothing. Otherwise, you split the cost with the remaining property owners.

At first flush it sounds reasonable, but it works out that those at the end of the road have to pay a lot more because they don’t have as many people to split the costs with. For example, how it worked out this year is that someone using 100% of the road had to pay five times more than someone using 94% of the road (although the end of the road isn’t in any worse shape than the rest of the road).

This doesn’t seem to fit the definition of the cost being shared proportionately to the use made. If you approximate each owner’s percentage of use by how much of the road they use, someone using 100% of the road would pay 6% more than someone using 94% (not 500% more).

Thoughts?

 

[Aranya]

I should mention that the way it works is that a road runs through each owner's property, so each property has an easement on it that gives ingress/egress rights for that road.

 

[Aranya]

MY sister has a home subject to a private road ..nothing seems to suit everybody!,

As an aside I could argue that home at far end of road uses 100% and the first home on road might use a mere 5%.

Absent reading cases on point, the law you cite does not give solid answers as to division.

Yes, the first house uses only 1% of the road, so it would only have to pay 1% of the maintenance costs if the costs are divided by use according to distance used from the driveway to the beginning of the road. By this method, those at the end would have to pay about 12%.

Since the way to allocate costs is not given in the agreement, I guess the court would have to decide how to do so?

 

[quincy]

Yes, the first house uses only 1% of the road, so it would only have to pay 1% of the maintenance costs if the costs are divided by use according to distance used from the driveway to the beginning of the road. By this method, those at the end would have to pay about 12%.

Since the way to allocate costs is not given in the agreement, I guess the court would have to decide how to do so?

A court can decide if the homeowners won't.

 

[Aranya]

I got the road agreement today and just had a chance to read it carefully. It turns out that it does stipulate how the road maintenance costs should be divided—equally.

The road agreement says that the road maintenance will be paid from a general fund. Each property owner pays $100 a year to this fund. Repair of "major damage," which is defined, is handled separately: "Repair of major damage is the responsibility of each and every owner whose driveway is below the point(s) of damage and excludes owners whose driveways are above the point(s) of damage."

So according to the road agreement, the road maintenance is to be shared equally among everyone on the road. However, the agreement is out of date and $100 from each property isn't enough to cover the yearly road maintenance. The road association is applying the "major damage" principles to the general road maintenance. I am incorrect in objecting that changing the road maintenance costs from shared equally to the principles mentioned for "major damage" is a breach of contract (even though they have been doing it for many years)?

Here is the "use principles" in full where "major damage" is defined:

The shares paid into the General Fund are for road surface repair and maintenance.

The President’s responsibility to utilize these funds for road surface maintenance does not include repair of major damage from fallen trees, mud slides, land slides, cave-ins, wash-outs, destruction of bridges, personal neglect, or an act of God, not any other cause of major damage.
Repair of major damage is the responsibility of each and every owner whose driveway is below the point(s) of damage and excludes owners whose driveways are above the point(s) of damage.

Each owner with a driveway below the point(s) of damage is responsible to immediately pay an equal share of the repair casts to the President who remains responsible to collect such repair funds and arrange repair immediately in the name of the Association.

As in the case of any other matter forcing the President to use the Courts to obtain any owner’s share, the Court Costs will be the responsibility of the defaulting owner.

 

[quincy]

You can take the road agreement to an attorney in your area for a review.

It appears you must pay or be forced into a position where you have to pay all court costs.

 

[Aranya]

Why would I have to pay when they are obviously not following the agreement? They don't need to use the courts to obtain my share because I already paid it. In fact, I already paid four times the amount stipulated in the agreement because they thought they could amend the agreement with a majority vote (and raised the yearly fee to $400). They would use the courts to obtain money that the agreement doesn't grant them.