Private Road Maintenance Agreement (section 8, refinancing, lender)

[JChicc]

We are refinancing our home and the lender wants a private road maintenance agreement. We have lived here for 20 years and of course, this has all been taken care of over the years through a handshake. We live at the very beginning of the private lane and our driveway is about 150 feet from the county maintained road. Our neighbor across the street is in about 120 feet. There are probably about 15 other homes down the road. So , we only care about access to ours. Will an agreement between us two suffice? Or, do we need one because we are in CA and we have "Appendix E, Calif Civil Code Section 845." Does anybody have recent experience with this? Thanks for your help

This states: the California Civil Code requires that private roads be maintained by all property owners benefiting from the use of the road.

Appendix E - California Civil Code Section 845

§845 Private Easement Maintenance by Owner of Easement or Land Easement Attached to - Apportionment of Cost - Actions

(a) The owner of any easement in the nature of a private right-of-way, or of any land to which any such easement is attached, shall maintain it in repair.

(b) If the easement is owned by more than one person, or is attached to parcels of land under different ownership, the cost of maintaining it in repair shall be shared by each owner of the easement or the owners of the parcels of land, as the case may be, pursuant to the terms of any agreement entered into by the parties for that purpose. If any owner who is a party to the agreement refuses to perform or fails after demand in writing to pay the owner's proportion of the cost, an action for specific performance or contribution may be brought against that owner in a court of competent jurisdiction by the other owners, either jointly or severally.

(c) In the absence of an agreement, the cost shall be shared proportionately to the use made of the easement by each owner.

Any owner of the easement, or any owner of land to which the easement is attached, may apply to any court where the right-of-way is located and that has jurisdiction over the amount in controversy for the appointment of an impartial arbitrator to apportion the cost. The application may be made before, during, or after performance of the maintenance work. If the arbitration award is not accepted by all of the owners, the court may enter a judgment determining the proportionate liability of each owner. The judgment may be enforced as a money judgment by any party against any other party to the action.

(d) In the event that snow removal is not required under subdivision (a) or under any independent contractual or statutory duty, an agreement entered into pursuant to subdivision (b) to maintain the easement in repair shall be construed to include snow removal within the maintenance obligations of the agreement if all of the following exist:

(1) Snow removal is not expressly precluded by the terms of the agreement.

(2) Snow removal is necessary to provide access to the properties served by the easement.

(3) Snow removal is approved in advance by the property owners or their elected representatives in the same manner as provided by the agreement for repairs to the easement.

(e) The provisions of this section do not apply to rights-of-way held or used by railroad common carriers subject to the jurisdiction of the Public Utilities Commission.


(1939 ch. 755, 1985 ch. 985, 1993 ch. 196)

[JChicc]

I see that a lot of you have read my question, but no replies . Could anybody direct me to another board or somewhere else to get some answers. Thanks!

[DMenscha]

Our county public works department has a boilerplate suggested road maintenance agreement, perhaps checking with your county might have the same.

[ColfaxTeri]

I have heard this request starting to happen recently. I am not sure why but our current mess seems to have caused some underwriters to dig deep into their regulations. Check your title report to make sure there was never one written. You may be able to get a paralegal to write one for you and then have it recorded too. It shouldn't take much with only two of you to come to agreement.

[NJ987654]

almost all lenders are requesting this now. Often, one does not exist. Try pointing out that this is covered under the ordinace you referenced. Maybe the Underwriter will accept it.