Legal Question in Real Estate Law in California

Re: Private Street

Your problem is addressed by California Civil Code section 845 and decisions of the courts interpreting and applying its provisions.

Absent an agreement among the easement owners, each has a duty to the others to contribute to the cost of repairs and maintenance in proportion to the use made. Decisions have held that a distinction is to be made based upon distance from the public street, and between unimproved lots and lots with residences. From this one might conclude that a residence with four SUVs might have to pay more than one with only a single, seldom-used econobox, but going beyond this is probably overly fine-tuning.

The statute provides that an aggrieved owner may apply to the local court for the appointment of an arbitrator to determine a fair apportionment of the maintenance cost, and that this may be done before, during or after the repair work. Thus, the dispute would not go to trial unless soemone were sufficiently unhappy with the arbitrator's decision to try to challenge it.

This procedure seems to provide a mechanism for forcing the recalcitrant owners to step up to the plate and do their duty. It would be wise to get written opinions on the condition of the asphalt along with written bids from several contractors prior to going to arbitration. This will give the arbitrator some of the information needed to make a sound decision.

Re: Private Street

Are you certain there was never any sort of road maintenance agreement entered between and among the original owners/developers of the parcels? In addition, there may well be conditions imposed on the easements that consist of the ingress/egress rights across the various properties. These can often include mandated maintenance and improvement to ensure continued use of the easement.

You might have a local title company run out a "preliminary title report" that will provide the specifics of any and all encumbrances on the properties. This is usually available at a very modest cost, or if you have a Realtor friend, they can often have them accessed for free from their favorite title agent.

What are the neighbors with the nice streets doing? Is there a higher level of cooperation and accountability, and they are just amicably sharing the maintenance? Ask around and see if they have a maintenance agreement that you might use as a model in discussing this with the neighbors on your street.

What is fair? How about the more properties a neighbor has to cross to access his own, the higher his/her respective contribution to maintenance? That is the one thing that will not vary with time, as folks will continue to buy and sell vehicles, change family composition, and the level of use will likely alter with every home ownership change.

Before launching into any formal proceedings to bring in a third-party (arbitrator or court), make sure there is not already something in place by which the owners are all obligated to one another. If there is not, give it one more try, with the bulk of the agreement drafted and ready for everyone to just fill in final details. The less they have to do to take care of this, the more likely they will sign onto whatever is demonstrated to be fair. You will have to take the role of "neighborhood activist" to rally them to enter some kind of agreement (if there is not one, already).

Rick D. Williams, Esq.