In the state of New Hampshire, you can find yourself driving along state highways and public roads. The state maintains the highways and some of the public roads, while the towns maintain all of the other public roads. But did you also know that you may find yourself driving down a private road on occasion in this state??
There are numerous private roads in New Hampshire. And yet, all of the statutes do not define exactly what a private road is. Some people may think that a road leading to a single home is a private road. That could be the case or that road could simply be an easement.
I want to discuss who maintains private roads. After all, municipalities and the state are not responsible for maintaining any private roads. Since there were no written laws or even guidelines, private road maintenance has been an issue in the courts for many years.
Back in 2015, the New Hampshire Supreme Court had a case, Village Green Condominium Association v. Hodges. In this case, there was an easement that both the owner and a neighbor used. When it came time to maintain the easement, the owner thought the neighbor should be held responsible for part of the cost. The Supreme Court ruled that yes, the neighbor had an obligation to contribute towards the maintenance.
According to the Supreme Court, “This rule is based upon the principle that, by using the easement, both the ‘owner and neighbor’ contributes to its wear and deterioration, and therefore, distribution of the burden of easement maintenance and repair between both estates is equitable and just.”
The neighbor tried to argue that, “this rule does not apply in this case, because the terms of the servitude clearly … addressed the issue of maintenance by granting [them] the discretionary right to make repairs and improvements, but omitting a corresponding obligation… to pay for repairs and improvements.”
The court obviously disagreed and imposed the obligation for the neighbor to pay.
Despite the court’s ruling of that case, there is still confusion over who is responsible for maintaining private roads. According to the New Hampshire Commercial Investment Board of Realtors, “Fannie Mae refuses to take a residential mortgage for a dwelling on a private road where the owner does not have a signed maintenance agreement with other property owners on that road. However, Fannie will waive that requirement if a state statute exists which allocates responsibility of the road’s maintenance.”
Numerous bills have been introduced to the New Hampshire Legislature since the court’s ruling. And many of those bills have failed in the Legislature over the years, due to one concern or another.
Thankfully, a private road maintenance law was passed back in August of 2019. Now, homeowners that live on private roads must all contribute to the maintenance of the road. Of course, this has caused more issues amongst homeowners and that is why we recommend forming an association when creating a private road maintenance agreement.
I’m not sure why private roads have not received the attention they deserve until recent years, but at least there are now a few guidelines in place for maintaining them. If you have any questions or concerns about a private road you use, please contact me today.