In Michigan, a private road is “a privately owned and maintained road, allowing access to more than one residence or place of business, which is normally open to the public and upon which persons other than the owners located thereon may also travel.”[i] Many people live on private roads and use them for access to their homes on a daily basis, but a lot of these people do not think about the legal implications that can arise from their private road.
The regulation of private roads in the United States is left up to the individual states, and many states give the authority to regulate roads to the counties or townships. For example, Michigan law gives “[t]he board of county road commissioners”[ii] the authority to “lay out new roads within the county as they consider necessary,”[iii] which includes private roads.[iv]
Disputes regarding the cost and performance of private road maintenance often arise because Michigan law treats private roads and public roads differently when it comes to maintenance costs. For example, public funds are used to maintain public roads, but it is unconstitutional to use public funds for the maintenance of private roads.[v] However, the county road commission may require the private road to include, “[p]roper drainage” and “grading.”[vi] Since public funds cannot be expended to maintain private roads and keep them up to the county road commission’s standards, the cost of maintaining a private road is “borne by the residents.”[vii]
Issues relating to sharing and maintaining a private road can create tension between neighbors and sometimes lead to legal proceedings. A common disagreement between neighbors on a private road is how the cost and performance of road maintenance should be allocated. It appears that when there is not a maintenance agreement in place, nobody maintains the road until it is absolutely necessary, and then issues arise as to whose responsibility it is to perform and pay for the maintenance. An alternative situation is when one individual or small group of individuals decides to perform the maintenance for the benefit of everyone residing on or using the road, and then try to collect the proportionate costs from all the other individuals.
Consistently maintaining a private road is important because the lack of proper maintenance can cause environmental harm. For example, putting salt on private roads in the winter is a task left up to the individuals living on the road, which can lead to over salting of roads.[viii] The extra salt runs off the road and damages the environment in a number of ways.[ix] “[S]tudies have shown that, in urbanized areas, about 95 percent of the chloride inputs to a watershed are from road and parking lot deicing.”[x] Road salt contains sodium and chloride ions, and when it dissolves, these ions enter the environment.[xi] Although chloride does not concern human health, it “is toxic to aquatic life.”[xii] Additionally, sodium can “affect the ability of the water to buffer acid deposition impacting the aquatic environment.”[xiii] Also, sodium can contaminate the drinking water, which creates a health concern for individuals who are restricted to low-sodium diets for health reasons such as hypertension.[xiv]
Despite these issues regarding private road maintenance, the regulation of private roads in Michigan is left up to the individual townships and varies widely. One source of regulation for private roads is the private road maintenance agreement. A private road maintenance agreement is an agreement between the individuals on a private road that sets forth how the road will be maintained and used.[xv] Lenders such as Fannie Mae typically require private road maintenance agreements as part of their appraisal process.[xvi] The reasoning behind this requirement is simple: if the road is not maintained, then the property value of the home on the road decreases.[xvii] Private road maintenance agreements could help avoid many issues that arise from a lack of road maintenance.
Private road maintenance agreements could solve the problem regarding cost and performance of the maintenance because it would set out how maintenance will be carried out and paid for. Private road maintenance agreements would also benefit “township officials who would otherwise have to mediate disputes or receive midnight calls due to disputes based on a nonexistent or defective maintenance agreement.”[xviii] A private road maintenance agreement would help alleviate these issues because it sets out these obligations ahead of time.
Second, a private road maintenance agreement could solve the problem regarding environmental impacts from private road maintenance or lack of proper maintenance. The county road commissioners would require the private road maintenance agreement to address certain standards regarding proper application and storage of road salt. The criteria would be based on the “[e]xpectations from the driving public . . . along with balancing the environmental effects of de-icing chemicals.”[xix] If the private road maintenance agreement gave guidelines on the proper way to salt the roads, the issue of over-salting could be alleviated.
However, without any laws or regulations in place to require a maintenance agreement, homeowners face the challenge of one or more homeowners refusing to enter into the agreement.[xx] This has resulted in the failure of a loan closing for some individuals.[xxi] One proposed solution to this problem would be something similar to the house bill that Washington House Representative, Jeff Morris, has sponsored. The 2011 Washington House Bill No. 1349 seeks to make private road maintenance agreements the law.[xxii] It will be interesting to see if this bill is successful, and if other states try to do anything similar. A bill like this would solve a lot of the problems that arise when there is no private road maintenance agreement in place.
When there is no road maintenance agreement in place, the issues relating to private road maintenance are left up to the individuals living on and using the road. This can then lead to disagreements between neighbors about how the maintenance should be performed and how the costs of maintenance should be allocated. These disputes can even get to the point where one or more neighbors bring legal action against other neighbors. If there was a private road maintenance agreement in place ahead of time, a lot of these headaches could have been avoided.
Alexandra Hartill is an Executive Editor on MJEAL. She can be reached at email@example.com.
The views and opinions expressed in this blog are those of the authors only and do not reflect the official policy or position of the Michigan Journal of Environmental and Administrative Law or the University of Michigan.
[ii]Mich. Comp. Laws Ann. § 247.660c (West) (“‘County road commission’ means the board of county road commissioners elected or appointed pursuant to section 6 of chapter IV of 1909 PA 283, MCL 224.6, or, in the case of a charter county with a population of 750,000 or more with an elected county executive that does not have a board of county road commissioners, the county executive for ministerial functions and the county commission provided for in section 14(1)(d) of 1966 PA 293, MCL 45.514, for legislative functions. In addition, if a board of county road commissioners is dissolved as provided in section 6 of chapter IV of 1909 PA 283, MCL 224.6, county road commission includes the county board of commissioners of the county.”).
[iv]§ 220.1 (“Public highways and private roads may be established, opened, improved and maintained within this state under the provisions of this act, and the counties, townships, cities, villages and districts of this state shall possess the authority herein prescribed for the building, repairing and preservation of bridges and culverts; the draining of highways, cutting of weeds and brush in the improvement of highways and the duties of state, county, township, city, village and district highway officials shall be as defined in this act.”).
[v]12 Mich. Civ. Jur. Highways and Streets § 178.
[vi]Mich. Comp. Laws Ann. § 560.183 (West).
[vii]Moshier v. City of Romulus, 220 N.W.2d 37, 39 (Mich. App. 1974)
(“The court found that except for two instances, the cost of repair had always been borne by the residents.”).
[viii] New Hampshire Department of Environmental Sciences, Environmental Fact Sheet (2010) http://des.nh.gov/organization/commissioner/pip/factsheets/wmb/documents/wmb-4.pdf.
[xv] Clifford H. Bloom, Navigating Private Road Issues, Michigan Township News, Dec. 2011, at 14-15.
[xvi] George Souto, Fannie Mae Private Road Maintenance Agreement, George’s Blog (Oct. 13, 2013, 1:59 AM), http://gsouto.activerain.com/post/4219404/fannie-mae-private-road-maintenance-agreement-.
[xvii] Robert WM Zierman, HB 1349- An Act Relating to Private Road Maintenance Agreements, Boundary Dispute Law Blog (Feb. 1, 2012, 11:00 PM), http://www.boundarydisputelaw.com/legal-news/hb-1349—an-act-relating-to-private-road-maintenance-agreements/.
[xviii] Bloom, supra note xv, at 15.
[xix] New Hampshire Department of Environmental Sciences, supra note viii.
[xx] Souto, supra note xvi.
[xxii]2011 Washington House Bill No. 1349, Washington Sixty-Second Legislature – 2011 Regular Session, 2011 Washington House Bill No. 1349, Washington Sixty-Second Legislature – 2011 Regular Session.