Two important road bills became law this session. One imposes an obligation on certain parties to contribute toward maintenance of private roads. The other allows municipalities to extend the “winter” period for highways to summer cottages.
Private road maintenance
The private road maintenance law began as SB 39 and finished as Chapter 308, Laws of 2019. This session marked at least the third attempt to get something passed dealing with the maintenance of private roads.
When more than one residential owner enjoys a common benefit from a private road, the new law requires each residential owner to contribute “equitably” to the “reasonable cost” of maintaining the private road.
The law is limited in its applicability. Rather than apply 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 new law would appear to not apply to:
- owners of commercial property on private roads (the law is unclear how it would apply to private roads with both residential and commercial owners;
- Disputes among residential landowners where no one 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 exists already, even if verbal.
Easement or Private Road
Interestingly, while the new law refers to the New Hampshire Supreme Court’s decision of Village Green Condominium Association v. Hodges, 167 N.H. 497 (2015), that case dealt with an easement, not a private road. Whether a strip of land is a “private road” or an “easement” is unclear. In fact, if not for the passage of laws like Chapter 308 (SB 39) and RSA 674:41 (building permits on private roads), many lawyers would see little distinction between an easement and a private road.
The new law, therefore, expressly adopts the Village Green/easement approach only to certain types of private roads, while leaving all other private roads to “the common law as applied to residences on private roads.”
Chapter 308 went into effect August 2, 2019.
Highways to Summer Cottages
Municipalities are exempt from maintaining highways to summer cottages from December 10 to April 10. RSA 231:79-81. These roads otherwise are full, Class V roads, meaning municipalities have the obligation of maintenance and repair.
Chapter 187 (SB 53) empowers municipalities to extend the four-month exemption period to a longer period, but no earlier than November 15 or later than April 30.
Chapter 187 goes into effect September 8, 2019.
Paul J. Alfano, Esq. Paul can be reached at paul@alfanolawoffice.com or (603) 226-1188. You can also contact the office here.