Do You Need a Private Road Maintenance Agreement?
Private Roads in NH Series – Part I
Do you need a private road maintenance agreement?
Private roads, while essential, can pose all sorts of problems for residential property owners and developers. Perhaps the most significant problem facing any private road is the absence of municipal maintenance, which then begs the question: who is responsible for maintaining the private road? One solution to this question is to enter into a private road maintenance agreement with all relevant stakeholders along the road in question.
However, if you do not have a private road maintenance agreement in place, New Hampshire law requires each residential owner to “contribute equitably to the reasonable cost of maintaining the private road.” RSA § 231:81-a (2022). The full text of the law reads as follows:
231:81-a Repair of Roads Not Maintained by a Municipality. –
I. In the absence of an express agreement or requirement governing maintenance of a private road, when more than one residential owner enjoys a common benefit from a private road, each residential owner shall contribute equitably to the reasonable cost of maintaining the private road, and shall have the right to bring a civil action to enforce the requirement of this paragraph. This paragraph shall not apply to any highway defined in RSA 229:5.
II. Any owner of a residential property abutting a private road who directly or indirectly damages any portion of such road shall be solely responsible for repairing or restoring the portion damaged by such owner.
III. Nothing in this section is intended to extend or restrict the common law as applied to residences on private roads, nor to affect the rights and obligations of non-residential property owners on private roads as they exist under the New Hampshire common law on easements.
This law is limited in its applicability. Rather than applying to all private roads, it applies only to residences on private roads “to facilitate the transactions of owners and buyers who apply for certain federally-backed mortgages that require such a statute in the absence of an agreement among the owners. It is not intended to extend or restrict the common law as applied to residences on private roads, nor to affect the rights and obligations of non-residential owners on private roads.” (Emphasis in the chapter law).
Therefore, the law would seemingly not apply to:
Owners of commercial real estate properties situated on private roads (the law is unclear about how it would apply to private roads with both residential and commercial owners);
Disputes between residential landowners where no party is applying for a federally-backed mortgage (although maintenance battles may undermine the purpose for the law); or
Private roads where a private road maintenance agreement already exists, even if such agreement is verbal.
Interestingly, while the law’s Statement of Purpose refers to the New Hampshire Supreme Court’s decision in Village Green Condominium Assoc. v. Hodges, 167 N.H. 497 (2015), that case dealt with an easement—not a private road. Whether a strip of land should be construed as a “private road” or an “easement” is unclear. In fact, if not for the enactment of statutes like RSA 231:81-a and RSA 674:41 (concerning building permits along private roads), many lawyers would see little distinction between an easement and a private road. Ultimately, RSA 231:81-a expressly adopts the Village Green easement approach only as to certain types of private roads, while leaving all other private roads to “the common law as applied to residences on private roads.”
Given the Village Green decision is part of common law, it provides helpful guidance for private roads and easements not falling within RSA 231:81-a. That case involved an express easement with a right (versus an obligation) to maintain a way, which both the property burdened by the easement and the property with the benefit of the easement had the right to use. The Court ruled that the party having the right to use the easement had an obligation to contribute toward its maintenance. “This rule is based upon the principle that, by using the easement, both the dominant and servient estates contribute to its wear and deterioration and, therefore, distribution of the burden of easement maintenance and repair between both estates is equitable and just.” This duty exists unless the terms of the express easement provide otherwise.
The Court’s decision specifically concerned an easement rather than a “private road,” but absent statutes like RSA 231:81-a and RSA 674:41, drawing a distinction between the two might pose a challenge, particularly given the reasoning underlying the Court’s decision. Given the nuances present in this area of the law, property owners with private road questions should seek the advice of experienced legal counsel.
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