Access road leads to worry for homeowner


April 28, 2002

Dear Mr. Azrael:

We live in a subdivision in Harford County [where] 10 properties are served by a private road. Due to circumstances at the time of development, the private road was deeded to one lot - Lot 8 - and made a part of the lot.

We do not have a homeowner's association or a private road/common drive agreement. The county told us it wasn't required at the time of development.

As far as we know we only have rights of ingress and egress as stated on our plat. No provisions were made for maintenance of the road. This property is now for sale, including the private road.

What rights do we have?

Can a new owner require us to sign an agreement for maintenance and snow removal? Can we require them to maintain the road? It is in very poor condition since no one has been responsible.

What liabilities are the owners of the road responsible for since it is part of that lot? Are they liable if there is an accident or injury on the road?

Melissa DeJarnette


Dear Ms. DeJarnette:

Your letter indicates that the owners of nine properties in a subdivision have an easement to use a private road, entirely within the boundaries of a 10th lot, for ingress and egress to their properties.

This easement - a right to use a road on someone else's property - may arise by virtue of an express grant, noted on the recorded subdivision plat, or by implication by virtue of the fact that all 10 lots originally were subdivided and sold with the intent that all 10 lots would use the same road for purposes of access.

A real estate attorney should review the record plat and your deed to determine whether there are any legal limitations or responsibilities that expressly apply to your right to use the private road. In the absence of any express provisions, each landowner who is entitled to use the private road has a right to enter on the road to perform repairs and maintenance.

If the 10 lot owners can't agree on a division of the cost of necessary repairs and maintenance, one or more owners can ask a court to apportion the cost. Most likely, a court would apportion expenses for maintenance and repairs in proportion to use the each lot owner made of the road.

As to your question about liability for accidents, the mere ownership of the private road does not make the owners of Lot 8 liable for injuries which accidentally occur on the road.

I strongly urge all 10 property owners to enter into a formal use and maintenance agreement that spells out the rights and responsibilities of all owners to use, maintain, repair and replace the private road.

This agreement should be notarized and recorded in the local land records. Legal assurances that the road will be maintained should increase the value of all properties that share use of the road.

Unfortunately, such an agreement will not be binding on any property owner who declines to sign it.

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