What are Road Maintenance Agreements?
A road maintenance agreement is an understanding or legal contract that designates the responsibilities for maintaining and repairing a roadway. It is a legally binding agreement between property owners, associations, or entities responsible for upkeep. These agreements typically spell out the obligations of parties, including financial contributions, types of maintenance, and scheduling.
Road maintenance agreements are primarily for roads and rotating patrolled roads. Roads are generally private roads owned by one or two property owners. Rotating patrolled roads are those that the patrol rotates on a schedule and the patrol care for the roadway on a rotating basis.
An issue that can sometimes arise with roads is roadblocks. In addition , rotatable roads can have issues with repair and snow removal. Having an agreement in place helps alleviate and minimize the problems.
The relevance of road maintenance agreements to real estate law is straightforward. When a property has access to a road, that road is critical to the value of the property and providing access to the property. If a road maintenance issue arises, it could delay or end development plans. This, in turn, may result in negative financial consequences. Road agreements will help prevent this while still complying with the applicable property laws.
Key Components of a Road Maintenance Agreement
An effective road maintenance agreement will typically contain the following key components:
Parties: Proper identification of the parties, including the proper land description or reference to the deed book and page numbers.
Purpose: To maintain roadways in accordance with official roadway standards to promote safety for vehicular traffic and to benefit the public generally, or to provide legal access required for these lands.
Scope of Services: A listing of the activities to be performed by the road maintenance association. These will usually include:
Road grading, repair, patching, or resurfacing
Rubbish and dead animal removal
Drainage and ditch cleaning
Vegetation or foliage control
Snow and ice removal
Road maintenance within and outside the platted subdivision or development
Boundary line staking for roads or cul-de-sacs
Rules and regulations and enforcement thereof
Construction of speed bumps, gutters, curbing, signs, stripping and other items of traffic control
Specific maintenance standards to which the activities will be performed, i.e., landscaping, resurfacing, widening, weed control and removal, mowing, etc.
Reimbursement of expenses for road maintenance performed on private roads through the development and collection of an annual or semi-annual road maintenance fee
Establishment and payment of a maintenance reserve to cover future major maintenance costs
Assessment of fees adequate to maintain the public road to official standards
Reserving authority to levy special assessments for specific maintenance
Granting authority to the road maintenance association, including liability protection, to enter upon land and perform the maintenance services and for the road maintenance association to act as an agent for the lot owners for the purpose of funding, constructing, and maintaining the required road(s) and any related items
Breach remedies
Dissolution and the handling of assets and liabilities of the association in event of termination or dissolution
Judgment lien against real property for unpaid maintenance fees arising under the road maintenance agreement
Security for maintenance fees secured against common area roads or lots held in common ownership
Optional provisions:
Reservation of rights by the property owner and/or the entity responsible for road maintenance association
Hearing procedures for enforcing maintenance obligations
Publicly recorded notice of road maintenance agreement
Protection and preservation of interests for adjoining landowners and entities responsible for road maintenance, i.e., easements, right of entry and access, and right of indemnification for actions pursuant to the road maintenance agreement
Transfer and encumbrance of common area and other property owned by the road maintenance association
Drafting Your Own Road Maintenance Agreement Template
Creating a road maintenance agreement template is simple if you are not dealing with an existing road. In that case the road or driveway in question is wholly private and your homeowner’s association has total control over it. But if your road connects to a public road and is part of a larger public system, that system has been dedicated (i.e. conveyed) to a government authority. Between the dedication and your HOA’s inability to improve the system’s condition, the HOA cannot save the system from their local government.
Most of the many, many neighborhood roads in North Carolina are private, unpaved, and frequently rough. Driveways and paths, while not to state standards, often have just as significant impact on people’s lives. If your neighborhood has such a road, it will need to be groomed at regular intervals in order to function. Furthermore, if abuse of the road (e.g. a too-heavy vehicle) results in damage, the owner of the offending vehicle can either be asked to pay for the repairs or can be excluded from using the road altogether (depending on the language of your road maintenance agreement).
Because most neighborhoods with adequate roads are subdivisions, their road maintenance agreements are very simple. They usually consist only of provisions pertaining to implementing a uniform schedule of road maintenance to be carried out by some sort of formalized governmental or quasi-governmental group, plus instructions on precisely how this process will occur. In other words, they instruct what will happen, and when. They may specify whether the road is gravel, dirt, or crushed stone, and may even go so far as to detail the depth of the gravel layer. However, they do not generally address "other" issues like the effect of maintenance on surface water, utility lines, or vegetation. This is largely because these provisions are already covered in the county’s unified development ordinance, such as Article 8 in 2019 Wake County UDO.
A common mistake when drafting a road maintenance agreement template is to begin writing the template with vague language. This not only creates ambiguity, which is the antithesis of a good template, but also encompasses almost every potential issue that could arise with your HOA’s road into one long list. These provisions invariably result in additional questions about who makes repairs, including whether the HOA will need to negotiate each repair with each affected property owner. For example, if a tree roots up under the road, rather than laying down flat and creating a pothole, will the HOA pay for your entire driveway’s reconstruction? Or just the cost of pulling up the roots and grading the road? By stating your policy plainly, through specific definitions, you may be able to prevent upsetting your members and avoid losing their support in the future.
As a starting point, we recommend the following:
In sum, your HOA’s road maintenance agreement template should focus on your road’s function. Leave the individual homeowner’s pipes, plants, and anything else confined to their property.
Legal Issues and Best Practices
When drafting a road maintenance agreement, it is imperative to consider the legal aspects that govern such documents. The foremost concern should be compliance with local laws and regulations. Many jurisdictions have specific statutes that address the maintenance of private roads, how decisions are to be made, and the costs associated with upkeep. It is crucial to familiarize yourself with these laws, as they can vary greatly between different localities.
One common requirement involves obtaining consent from a certain percentage of participants prior to making any significant alterations or improvements to the road. Some regulations may also dictate how disputes are resolved , with mediation or arbitration clauses being mandatory in certain states. Another legal consideration is the allocation of liability. Allocating risk appropriately among the parties involved can help mitigate potential legal disputes down the line. It is recommended to include indemnification clauses that clearly state each party’s responsibilities in case of personal injury or property damage on the road.
Regulatory compliance should be paired with best practices for creating a road maintenance agreement template. A clear template can save time and money down the line by outlining all the necessary provisions for a legally enforceable agreement. Consulting with a legal expert when creating a road maintenance agreement template is another best practice. This ensures that the agreement complies with all applicable laws and regulations, and that potential issues are addressed upfront. Further, the template should include all necessary information to outline the responsibilities of all parties involved and all aspects of road maintenance.
Road Maintenance Agreements and Trouble Areas
While creating a road maintenance agreement template can save parties considerable time and costs, there are still some common challenges that parties might encounter either during the drafting process or during the execution of the agreement. Some of the most frequent issues involve disputes over what is included in, or omitted from, the agreement. Without proper planning, parties might later have to end up negotiating and drafting complementary agreements for minor issues. For example, parties might forget to include liability coverage, or have vague or uncertain definitions of what constitutes "ordinary wear and tear." Even seemingly self-explanatory clauses regarding the consequences of a default might become contentious if there is any degree of ambiguity.
In addition to planning for these types of contingencies, parties should ensure that they have process in place to immediately address any ambiguities over the execution of the road maintenance agreement. If a road maintenance obligation is not implemented correctly, the maintenance work might be substandard and might actually have short- or medium-term adverse impacts on the use of the property.
Conclusion: The Need for a Customizable Template
The value of having such an organized, customizable agreement template is that it gives the county and applicant a clear sense of the process, cuts the occurrences of back-and-forth communication, and promotes understanding particularly when the project costs are high . Whether you are ultimately paving, chip sealing, oiling, rotating the existing culverts and restoring the road surface with gravel, or making some other improvement, it is wise to use a road maintenance agreement template that helps guide the parties through the process and that is flexible enough to adapt to each unique situation. This is particularly the case for larger repairs or improvements where the interplay between actions can be significant. In short, a good road maintenance agreement template will keep everyone on the same page, organized, and moving forward.