Statutory Solution to Private Road Maintenance Issues 

Ever gotten most of the way to closing only to discover that buyer’s lender requires that the common right of way (many times a common driveway) at the property have a maintenance agreement in place before closing? I’ve seen that many times so I’m sure most of you have seen this too and have cringed at the prospect of approaching the other common driveway owners to obtain an agreement in written form for recording on the land records.

Sometimes the neighbors are happy to sign an agreement (usually some unwritten agreement is already in place). Still, neighbors don’t want to sign something prepared by Seller’s attorney without consulting their attorney; so sometimes neighbors just say no. Failure to record a maintenance agreement could kill the transaction. 

In response our state legislature has passed an Act that resolves the issue, effective October 1, 2014. Please read synopsis below:

Public Act 67, An Act Concerning Maintenance of Private Easements and Rights-of-Way

This act requires the owners of residential real property using a common right of way to share the cost of maintaining the right of way, including snow removal, in proportion to the benefit received by each property owner, unless a written agreement among the owners provides otherwise. This law is designed to satisfy an underwriting requirement by Fannie Mae that there be a recorded road maintenance agreement if a property is located on a private road. Fannie Mae will waive the requirement for a road maintenance agreement if “the property is located within a state that has statutory provisions that define the responsibilities of property owners for the maintenance and repair of a private street.” Effective October 1, 2014.

And here’s the actual legislation answering questions like “What is a private right of way”?…: