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Private Roads and Road Associations
A privately owned road, commonly called a “private road,” is a road over which neither the municipality nor the general public has the right to pass by vehicle or on foot. Anyone using or repairing a privately-owned road without the owner’s permission is subject to an action by the owner for trespass (see 14 M.R.S.A. § § 7551-A and 7552; and Hatch v. Donnell, 74 Me. 163 (1882)).
In general, a municipality has no legal right to spend public funds to repair, maintain or plow privately owned roads (Opinion of the Justices, 560 A.2d 552 (Me. 1989)). In emergency cases, such as a house fire in the winter, it is legal to send a snowplow down a privately owned road so that the fire truck can get in, but the owner is responsible for ensuring that the road is sufficiently maintained to allow the plow to get through. In 2009, the Legislature modified this law to allow municipal equipment to be used on private roads that were negatively impacting the water quality of a nearby “great pond” as listed by DEP.
Forming a Road Association
Managing maintenance on private or camp roads that serve multiple users can be difficult. Questions about ownership, liability, and maintenance costs can become very complicated and cause hard feelings between neighbors. Forming a road association can be an effective means of avoiding or addressing these problems. By establishing a road association you can:
Road associations can be loosely formed or highly organized. Generally, the more organized the association, the easier it is to maintain the road and share the cost. A good option for road associations is to incorporate as a non-profit corporation with the State of Maine and to develop a set of rules by which you will do business (by-laws). The primary purpose for incorporating is to protect individuals from personal liability. If an accident occurs (gross negligence aside), instead of an individual being held liable, the incorporated association would be liable.
Incorporating as a Non-Profit
Following are some steps to follow to form a non-profit corporation:
Complete the form entitled “Non-Profit Corporation, State of Maine, Articles of Incorporation.” This form can be obtained from the Maine Secretary of State at 101 State House Station, Augusta, Maine 04333-0101 (Tel: 207-624-7736). There is a small annual filing fee. If your annual gross receipts are normally less than $5,000, your non-profit organization is exempt from paying income tax under Section 501(c)(3) of the Internal Revenue Code. If your annual receipts are over $5,000, you can apply to the IRS for exemption designation using form 1023.
Your next step is to adopt by-laws and elect officials. Topics covered by the by-laws should include items such as:
The law allows landowners to underwrite necessary maintenance costs and establishes an enforcement process for collecting dues. To qualify under this law, a private road must:
Essentially, this law allows for the recouping of maintenance costs, but specific procedures must be followed so landowners have the opportunity to vote on proposed maintenance projects. If an owner neglects to pay his or her dues, the money (plus costs and attorneys fees) may be recovered in a civil action.
(Excerpted from "Camp Road Maintenance Manual, A Guide for Landowners"; developed by Kennebec County Soil and Water Conservation District with assistance from the Maine Department of Environmental Protection; June 2000)
This page last updated on 3/13/13
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