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Private road or private nightmare?
Our country has thousands of miles of private roads. By “private,” I mean roads not owned or maintained by government that serve two or more parcels of land.
Landowners build private roads for many reasons, such as the prospect of better privacy, security and maintenance than local government will provide. Or perhaps because local government won't build or maintain a public road.
What could go wrong in building your own road? A lot.
Most private roads are created by signing and recording an easement, or by adding easement language to a deed of real estate that is then recorded. Say you have been granted an easement for a private road across a neighbor’s property. Your first step in understanding your rights to use the road is reading the easement or deed that created the roadway access.
Many developers take the short cut of deeding land “together with a private roadway easement” across adjacent land they own. Or they sign and record the form easement agreement many townships or cities require. Such agreements often do little more than grant the easement and say the private road users — and not the government — must maintain the road and improve it to higher standards as more parcel owners make use of the road.
Often such easements fail to address some really important issues, such as:
1. How will you share maintenance and improvement costs? Equally? What if one road user has a small office building with very little traffic and another has a 48-unit apartment complex? Or the road is a mile long and one user only needs to use the first 400 feet, while another uses the entire mile? “Equally” might sound fair, but often it isn't. In a dispute, a court would probably impose a sharing scheme it thinks reasonable, but you might not agree.
2. Can you split your parcel, build multiple buildings and vastly increase the number of road users? Generally, courts will only permit limited flexibility to increase the intensity of use. If you have development plans, they should be addressed in the easement.
3. Can you improve the road? If the existing road is gravel, don't assume you can pave it, or add lighting, a sign, landscaping or a gate, unless the easement says so.
4. How will you make road improvement and maintenance decisions? Unless the easement sets forth a process to do so, such as majority vote, you are stuck trying to get all landowners’ approval. If you don't, then don't be surprised if the dissenters refuse to kick in their share.
5. What if a user fails to pay their share? A well-drafted easement might include provisions for claiming and foreclosing a lien on the user's parcel to recover the amount owed, as well as interest and your attorney's fees to do so.
6. Can the owner of the parcel the road crosses also use the road? Unless the easement says it is “exclusive,” the owner of the burdened parcel can make any use of the road and the land under it that doesn't impede your easement rights. He or she can even grant others the right to use it.
7. Can you extend the road across your parcel and grant a neighboring parcel the right to use the road? No, unless the original easement identified your neighbor’s parcel as also benefitted by it. If you plan to use the road to serve other property, you must make sure the easement grants you that right.
8. Are you liable if, due to poor maintenance, someone gets hurt on the road? Possibly. That is why a well-written easement may provide for creating a nonprofit corporation to maintain the road to insulate parcel owners from such liability, or might require that liability insurance be purchased for everyone's protection.
While a private road provides many benefits, using and maintaining it has the potential to become a nightmare. When buying or leasing land served by a private road, insist on seeing a copy of the easement that established it. Check to see if the easement addresses these important issues. Make sure the easement works for your intended use of the land not only for today, but also for the future.
Bill Hall is a partner with the law firm of Warner Norcross & Judd LLP, where he prepares and interprets road easement agreements for industrial, commercial, residential and condominium developments. He can be reached at firstname.lastname@example.org.