Daniel J. Ossoff
The fact
patterns are familiar to many of us. The
client owns a property to which access is available The private way has fallen into
disrepair. Although several of the
owners are prepared to contribute their share of the cost of making the
necessary repairs to the private way, other owners are not so forthcoming. The distressed owners, who are unable to
raise the funds necessary to repair the way from the full roster of owners who
use the way, turn to the town for assistance.
The municipality, which is struggling to find the necessary funds to
maintain and repair the public ways under its jurisdiction, responds to
the disappointed property owners that the private way on which they reside
is not the town’s responsibility. The
town officials suggest that the owners look to their homeowners association
documents to enforce the obligations of all the owners to pay their fair share
of the costs of maintaining and repairing the private way. Alas, no such association was created at the
time the private way came into existence, and no association binding on all the
property owners can be formed without the cooperation of one hundred percent of
the property owners using the private way.
Of course, there is little or no chance that the troublesome owners who
are not willing to pay their share of the costs of maintenance and repair of
the way will cooperate in the creation of a homeowners association that could
compel them to pay up. So the owners who
are willing to “do the right thing” are stymied in their efforts to get the
private way repaired.
by means of a shared
private way serving a dozen separate properties.
Similar
scenarios arise in connection with private bridges or other appurtenances to
private ways, privately owned water, sewer or other utility lines, and
privately owned beaches, parks or other recreational facilities. In each case, in the absence of an
established owners association or maintenance process, it is often an
insurmountable task to keep such bridges, utilities or other common amenities
and appurtenances in good condition and repair.
Nor are these problems limited to residential subdivisions. Similar issues can arise in office and
industrial parks which were created without the establishment of associations
charged to maintain the roadways, utilities and other park infrastructure.
Meanwhile, the headaches of these property owners more often than not also
become the headaches of the municipality charged with assuring that safe access
is available to all properties for the provision of emergency services.
The only
statutory mechanism that is available to assist property owners seeking to
insure the maintenance of private ways can be found in the seldom-used
provisions of M.G.L. Chapter 84, Sections 12, 13 and 14. Those statutory provisions provide a
procedure by which the proprietors and rightful occupants of a private way or
bridge may make application to a clerk of the district court or the clerk of
the city or town or to a justice of the peace to issue a warrant for a
proprietors’ meeting at which a surveyor can be appointed to oversee the
maintenance and repair of the private way or bridge. Of course, the process for causing such a
meeting to be held is cumbersome, and the concept of appointing a surveyor to
oversee the private roadways strikes the modern day practitioner as
particularly archaic. The statute also
provides little guidance as to how maintenance costs are to be assessed and
collected or how owners are to work together to cause the maintenance to be
performed and the assessments collected.
Needless to say, these existing statutory provisions have proved to be
of little use in current times to address the problem of assuring that private
ways, bridges and other common amenities are properly maintained.
A bill
sponsored by REBA, S 1910, entitled “An Act relative to the maintenance of
private ways, bridges and common amenities in municipalities” is an effort to
replace Chapter 84, Sections 12 through 14 with a more modern framework by
which maintenance processes can be established and common associations formed
to insure the ongoing maintenance, not only of private ways and bridges, but
also of private utility lines, recreational areas, or other common facilities
and amenities. Building off the
procedures in the existing statutory provisions, where four or more property
owners have the right to use a private way, bridge or other common amenity, the
bill provides a mechanism for any three of those property owners to call a
meeting for the purpose of establishing a maintenance process for the private
way, bridge or amenity. The meeting may
also be called for the purpose of establishing a common association that will
oversee that maintenance process. In
deference to small subdivisions or office or industrial parks where the formality
of an owner’s association may not be necessary, the bill allows but does not
require a common association to be formed in order to establish a maintenance
regime for the private ways or other amenities.
The bill not only addresses the creation of new maintenance procedures
and common associations, but also provides mechanisms to revive and amend
existing procedures and associations which may have not been used in years or
which are in need of being modernized and revised to meet the current needs of
the property owners.
In order to
avoid the present situation in which unanimous consent is required to establish
a maintenance process or common association for existing private ways, bridges
or other common amenities where none currently exists, the bill provides for
the adoption of a maintenance process or common association by vote of a
majority of the property owners attending a meeting called for that purpose.
Notice of that initial meeting is given by mailing by certified and first class
mail a copy of the notice to each owner at its address appearing in the records
of the tax assessor and by publishing the notice in a newspaper with general
circulation in the municipality. Both
the mailed notice and published notice are to be accomplished not less than 14
days prior to the meeting. No longer
will it be necessary to make application to the clerk of the district court or
the municipality or to a justice of the peace to issue a warrant for a meeting
of the owners having the right to use the private way.
Senate Bill
1910 is enabling in nature, allowing the owners to devise a maintenance process
or structure an owner’s association as necessary to meet the needs of their
particular situation, without prescribing exactly what elements are to be
included in either. However, upon the
establishment of a maintenance process and/or a common association, the bill
requires certain basic information identifying the same to be recorded at the
registry of deeds or the registry district of the Land Court, including the
identity of the affected property owners and a description of the private ways,
bridges or other common amenities that are the subject of the maintenance
process or the common association. Where
a common association is formed, the names of the members of the board of the
association must also be placed on record (as well as any future changes to the
board). All of this is intended to
assure that this information is available to title examiners, conveyancing attorneys
and new owners and lenders looking to acquire or finance a property that is
subject to a maintenance process or part of an owner’s association.
The bill also
formalizes the process of establishing a lien for unpaid common expenses,
similar, in many ways, to the process that is available to condominium
associations for unpaid common area charges. Importantly, in order to take
advantage of the lien provisions in the bill, a formal common association is
required to be formed to oversee the enforcement of those lien provisions. The bill also provides for a member of the
board of the association to be able to execute and deliver a certificate
confirming that all common charges assessed to a particular property have been
paid, so that the certificate will be available to be recorded in order to pass
clear title to the property in the event of a sale or refinancing. For the purpose of allowing for foreclosure
of the lien, the bill amends the provisions of M.G.L. Chapter 254 to establish
a foreclosure mechanism which again parallels the mechanism that is available
in the context of unpaid condominium common area charges.
A subcommittee of REBA’s Legislation Section has spent a
significant amount of time revising and refining the bill. It is the view of the members of that
subcommittee that the bill, if enacted, would be of significant assistance to
property owners faced with assuring that private ways and other common
amenities are maintained, and assuring, also, that all owners benefitting from
the use of such ways and amenities will pay their fair share. REBA strongly
supports the passage of this bill.
The chief sponsor of the legislation is new Senator Julian
Cyr (D - Cape and Islands). Co-sponsors
include new Senator Adam G. Hinds (D – Berkshire, Hampshire,
Franklin and Hampden), and House sponsors Representative Sarah K. Peake (D -
4th Barnstable), Representative Keiko M. Orrall (R - 12th Bristol) and
Representative Mathew Muratore (R - 1st Plymouth.)
Principal draftsman of REBA’s private ways legislation,
Dan Ossoff chairs the real estate department at Rackemann, Sawyer &
Brewster, P.C. His practice
concentrates on all aspects of commercial real estate development and finance
with an emphasis on land acquisition and disposition, leasing, title and land
use planning matters. Dan’s email address is dossoff@rackemann.com.
