Private roads create all sorts of problems for abutters and developers:
- Can you get a building permit where your lot’s primary access is a private road?
- Who is responsible to maintain a private road?
- Can you subdivide land accessed by a private road?
- Is an easement the same thing as a private road?
What is a private road?
But before getting to those questions, what exactly is a private road? Even though a few statutes use the term, they don’t define it. One example is RSA 674:41, which addresses building permits. At least with respect to that statute, we can say with reasonable certainty an easement servicing a single home likely does not rise to the level of a “private road.” Beyond that, the view is murky, and not all municipalities strictly adhere to the “easement” restriction in RSA 674:41.
One thing a private road is not is a public highway, meaning it does not fall into a classification of a type of public road. The distinction between a private road and an easement most definitely is not clear, but this lack of clarity may create opportunities for property owners.
Who is responsible to maintain a private road?
Perhaps the most significant characteristic of a private road is the absence of municipal maintenance, which then begs the question: who is responsible to maintain a private road? If covenants or other written agreements exist, then the issue is, of course, relatively easy to resolve. Absent a written agreement, the situation becomes more difficult.
The New Hampshire Supreme Court recently addressed this issue in a case involving an express easement with a right (versus an obligation) to maintain a way, which both the property burdened by the easement and the property with the benefit of the easement had the right to use. The court ruled that the party having the right to use the easement had an obligation to contribute toward its maintenance. “This rule is based upon the principle that, by using the easement, both the dominant and servient estates contribute to its wear and deterioration and, therefore, distribution of the burden of easement maintenance and repair between both estates is equitable and just.” This duty exists unless the terms of the express easement provide otherwise.
The court’s decision specifically related to an easement rather than a “private road,” but absent a statute like RSA 674:41, drawing a distinction between the two might pose a challenge, particularly given the reasoning behind the court’s decision.
Keep an eye out for legislation attempting to define private roads or address maintenance of private roads. Such bills have been introduced in recent sessions.
What happens if a private road is damaged by an OHRV or snowmobile?
The statutes governing OHRVs (RSA 215-A) and snowmobiles (RSA 215-C) state that the operator or owner, or both, of any OHRV/snowmobile shall be responsible and held accountable to the owner of any lands where trees, shrubs, roads, or other property have been damaged as a result of travel over the owner’s premises by such vehicles.
Abutters also should be aware of RSA 674:41, which restricts the ability to obtain building permits on private roads.