We in the Sierra Foothills rely on more privately maintained roads more than any other area. At higher elevations, private roads are less common because of the high expense of snow removal. Down the hill, development has reduced the number of private roads. We know better than most of the burdens that come with maintaining our own roads.
Often at our practice, I am approached by residents who live on shared private roads. The duty and responsibility to maintain these roads is the responsibility of every shared owner. The easiest way to define the rights and cost responsibility of owners is to enter into a road maintenance agreement or set up a road association to deal with maintenance issues. More often than not, however, associations are never formed and agreements are never drafted. What happens then?
California Civil Code § 845 lays out the responsibility of private road maintenance, including snow removal. Paragraph (b) of Section 845 states “[i]n the absence of an agreement, the cost shall be shared proportionately to the use made of the easement by each owner.” The next question is, how do we measure proportionate use? Is it the number of vehicles? Yes. Is it the size and impact of the vehicles, such as heavy equipment? Yes. Is it the length of road you use? Yes. There are many factors that are rolled into proportionate use. The multitude of factors and negotiating those factors are where maintenance contributions, and the formation of road associations, often fall apart. One court has noticed the difficulty in interpreting proportionate use… “Literally construed, ‘proportionately to the use made’ would require the [court] to distinguish between residents having two cars and those owning only one, between easement holders heating their homes with electricity and those being serviced periodically by heavy butane trucks.” (Healy v. Onstott (1987) 192 Cal.App.3d 612, 617.)
Can an owner be forced to contribute to road maintenance?
Yes. Section 845(c) states that the other property owners may sue for a court order to compel contributions to road maintenance. A contribution case may be brought as a limited/unlimited civil action or in small claims court (for amounts under $10,000 for individuals and $5,000 for businesses). The action may be brought by one owner acting alone, or collectively by a number of owners. Importantly, the action may be brought before, or after, the work is actually performed.
My recommendation is to file the small claims action early and often. Obtain a bid or estimate for the work and use that in your small claims case. If you perform the work first, you will be fronting the cost of maintenance and face an uphill battle trying to collect. If collection is postponed for many years, you will create problems with the statute of limitations and potentially accrue so much liability on the part of the non-contributing owner that you will then be outside the jurisdictional limits of small claims court.
How about improvements?
California courts have distinguished between private road maintenance compared to improvement. The appellate court in Holland v. Braun (1956) 139 Cal.App.2d 626 was tasked with reviewing a case brought by feuding owners of the same private road. Some owners took it upon themselves to pave the shared road that was previously dirt/gravel. They then brought an action seeking to recover for contributions under Section 845. The court sided with the non-contributing owners stating that the action to pave was an improvement, not maintenance, and therefore Section 845 could not be used to compel contributions. Be aware, if you make improvements, you do so at your own cost.
Note on cannabis cultivators.
For numerous obvious reasons that I will not delve into here, cannabis cultivators have always preferred not to bring undue attention to their activities. However, cultivation often brings with it an increase in proportionate use on private roads compared to the surrounding residential properties in sparsely populated areas. As many cultivators have found, the quickest way to an anonymous tip to code enforcement is through a private road dispute with your neighbors. My advice to cultivators no matter what degree of legality you are operating, keep your neighbors happy through contributing to road maintenance and recognize the increase in proportionate use brought by farming the land.
Michael C. Mapes is a local land and property attorney, born and raised in the Sierra Foothills. Feel free to call our office at 530-426-2868.