The General Court is considering two bills of note dealing with roads this year. One bill would affect the non-maintenance period for highways to summer cottages, and the other is a renewed effort to impose maintenance obligations on owners of residential property on private roads.
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.
The General Court created this exemption in 1893. The original statute did not contain the voting requirement under the current law, and neither the original nor the current statute define a highway to summer cottages.
The four-month exemption period has remained the same for the past 126 years, but SB 53, which has passed the Senate (as of this writing), would empower municipalities to extend the four-month exemption period to a longer period, but no earlier than November 15 or later than April 30.
Other than the sponsors and the New Hampshire Municipal Association, the lone member of the public to testify at the Senate Transportation committee hearing was the road agent for the town of Washington. The road agent said he has been experiencing difficulties removing hard pack created by snowmobiles, OHRV and other recreational vehicles.
Interestingly, the hard pack problem likely would not exist but for the passage of laws permitting the use of snowmobiles and OHRVs on Class V and VI roads. Some citizens fought back this year with a bill that would have prohibited municipalities from authorizing the use of OHVRs on Class V roads (HB 498), but the House killed the effort.
Private Road Maintenance
If you think you’ve seen this issue before, you have. Another attempt is being made this year to enact a law requiring owners of residential property on a private road to contribute toward the road’s maintenance. Previous efforts failed to pass both chambers.
There are two backdrops of note. One is the New Hampshire Supreme Court’s decision in xVillage Green Condominium Association v. Hodges, 167 N.H. 497 (2015). In short, Village Green holds that, where there is an express easement with a right (versus an obligation) to maintain a way which both the servient (the property burdened by the easement) and dominant (the property with the benefit of the easement) owners have the right to use, the dominant owner has an obligation to contribute toward its maintenance. Village Green interpreted an easement, not a private road. While the rationale underlying Village Green may be difficult to avoid when applied to private roads, the distinction between an easement and a private road is not clear when a statute is involved.
The other backdrop is an apparent refusal by the Federal National Mortgage Association (FNMA) to insure mortgages on properties situated on private roads without maintenance agreements among all the owners. People who testified in favor of this year’s bill, SB 39, assumed a statute imposing a maintenance obligation would satisfy FNMA.
While passage of SB 39 very well may facilitate more residential transactions by increasing the funding options, a cynical lawyer might say passage of the bill in its current form would benefit lawyers the most. Among other unclear provisions, the bill does not define “private road” or the basis on which “rateable” contributions shall be calculated. The law also would apply only “in the absence of an express agreement or requirement governing maintenance.” Testimony before the Senate Transportation Committee indicated a handshake agreement would suffice; written agreements are not required. The intent appears to preserve the innumerous verbal arrangements that have worked for years, but one unhappy owner now will have the option of claiming no such agreement exists to try to force the application of the contribution mechanisms of the new law.
The next hurdle facing SB 39 and SB 53 is to pass the House.
Paul J. Alfano, Esq. Paul can be reached at paul@alfanolawoffice.com or (603) 226-1188.