used roads

Started by FredL1 • 22 replies • 1610 views

💬 Join us to post & get advice from 50,000 HOA & Condo leaders.

⚡ Takes 30 seconds

Already a member? Log in

FredL1 (Colorado)
Posts: 8

Posted:

Hello Everybody,

Looking for Advice. We have an unused road in our community (rural land owners Association) I'm trying to save the board money by no plowing the snow off. Its a bit steep at towards the top the snow is deep over a foot in parts and shaded. We have a couple of folks using it as a cut through and the ruts are getting deep. I have tried to talk to one of the land owners about this and he says he will not honor the chain across the road. When the snow starts melting into the ruts we are going to have a headache also we are rural and someone could get stuck up there and nobody would know about it causing a liability to the Board. We thought about signs and all that but its like admitting to the problem.

thanks

Fred
Colorado

PitA
Posts: 1,416

Posted:

..... We have an unused road in our community .....

No, you do NOT have an 'unused road'.

You have a seldom used road.

..... We have a couple of folks using it as a cut through and the ruts are getting deep .....

The association needs to either:

permanently close the road (?vote required?)

or

maintain said road properly like the other roads.

? What do your documents say ?

BobD4 (up north)
Posts: 1,002

Posted:

Quote:

Posted By FredL1 on 02/23/2016 9:04 AM
We have an unused road in our community (rural land owners Association) I'm trying to save the board money by no(T) plowing the snow off. Its a bit steep at towards the top the snow is deep over a foot in parts and shaded. We have a couple of folks using it as a cut through and the ruts are getting deep. . . . someone could get stuck up there and nobody would know about it causing a liability to the Board. We thought about signs and all that but its like admitting to the problem.

FredL1 (Col) Many lawyers have fought & died for the right of everyone to litigate until every last buck is spent. Respectfully get a competent legal opinion as to to your association's obligations & limits - if at all - to maintain that road and/or prohibit its usage.

If - seasonally - maintenance can be totally suspended, an absence of prohibition signs/ warnings would be honey to the lawyers of those suffering loss or injury. Between jurisdictions, remedials or warnings later AFTER a loss may vary in implying some want of care. Effective warnings BEFOREHAND are not likely to do so. Someone takes the wrong turn or is a jackass . . . slides into rocks or gets stuck . . .is frozen to death etc

MelodyM1 (Colorado)
Posts: 9

Posted:

If you don't mind me adding to the discussion - I'm on the BOD with Fred (we're both officers), and we're going through hoops right now with the issue.

Some background - our rural mountain association was formed in 1999. The assessments have not gone up a single cent since that time. Needless to say, the cost of road maintenance has.

It's come to the point of needing to raise the assessment to maintain the snow plowing on the roads. Because of the balk against this assessment upcharge, we had a board vote and decided that we would plow roads which lead to residents' homes. (Side note here - 35 acre+ lots, 51 total, only about 20 have homes on them). If someone with a home who was not resident was coming up, we asked that they give us notice, and we would plow in advance of their arrival (being a property owner with a vacation home myself, I'm quite okay with the fact that my road is not regularly plowed, unless they know I'm coming).

So, the board voted to snow plow only those roads which are used for resident access, and other roads as requested when property owners were visiting and needed access (or realtors showing properties, etc.). Side note - until this year, the road was plowed by volunteers, who received only gasoline reimbursement. Occasionally, we would hire a contractor if there was an issue with deep snow, road damage, etc.

Because one of the now unplowed roads is being used regularly by a landowner as a shortcut to another landowner's home, and we're seeing damage to the road (these roads are dirt & gravel), we have set into discussion a motion to chain roads that are not plowed, along with a warning sign about the road stating that the road was hazardous. Our landowner who uses the shortcut (saving himself about a half mile) is throwing a fit. We haven't set the motion into place yet, but everyone on the board (with our one fit-throwing exception) is firmly behind doing so. When one BOD member stated that, if we chose to NOT chain it, we would need to plow, and that would mandate an assessment increase, he immediately started screaming that he wanted to see all receipts for past years, and that if we didn't have enough money, our treasurer must be unethically handling it. (Despite our treasurer getting approvals on all bills to pay before paying them).

Much more has been given here that the issue of chaining off un-plowed roads, but I hope that you can see the war raging right now.

Once the motion is set into place, the board will vote to chain off unplowed roads (this would be a follow-up to our January vote when we decided which roads would be plowed regularly), we would, of course, notify all property owners of the decision that has been made (our e-mail with that decision would include a preface that we are trying to keep from having a sizeable increase in assessment, and reminding them to notify us if they were coming to visit, and we'd clear their property path). Additionally, we've already lined up someone who will donate good quality signage to hang from the chains with the road condition warning.

Questions here - do we need to set locks on the chains, or can we leave them with a "drive at your own risk" policy? I don't feel that locking them will do any good, as we'd obviously have to give combinations to the board, property owners along that route, etc.

We're in a pickle - we cannot afford to keep the entire ranch plowed at all times, but we recognize the liability risk we face if we do not do something about those "rarely-used" roads that we do not keep in driveable condition at all times.

Help?

NpS (Pennsylvania)
Posts: 4,216

Posted:

Some random thoughts:

1. What's common practice around you? If it's common knowledge that rarely used roads don't get plowed and people pass at their own risk, then you're on better footing.

2. You're at risk of being sabotaged. If the one person is that hot about it, he's likely to use his key to open the lock and leave it that way. Who bears the liability then?

3. Have you offered him to plow that portion of the road himself? What was his response?

4. Is your policy re clearing roads with advance notice published somewhere? Do you plan to do the same for this new policy?

5. It's a financial decision. If the trade-off is an extra 1/2 mile drive for one person versus thousands of dollars in plowing, seems like majority should pick the best solution.

Sikubali jukumu. Read all posts at your own risk.

PitA
Posts: 1,416

Posted:

'rarely used' is not applicable

'used' is the key term

as directors y'all need to either:

permanently abandon the road (?vote required?)

or

fund its maintenance

....we cannot afford to keep the entire ranch plowed....

then you can not afford to live where you live

as directors it is your fiduciary duty to assess for the maintenance required by your 'governing documents'

DIRECT AS REQUIRED or PETITION FOR A RECEIVER

Y'all own it - Y'all pay for it.

Or sell and move.

JeffT2 (Iowa)
Posts: 880

Posted:

I agree with this from PitA: ? What do your documents say ?

What does the local fire department say about chaining roads?

What are your obligations to the county/local govt?

MelodyM1 (Colorado)
Posts: 9

Posted:

In reply to NpS:

1. Common practice in the area actually is that we have been noted more than once as the LOA that has excelled in road maintenance. Besides the winter plowing duties, we re-grade most of our roads every spring - making it easier for our owners to travel the ranch. I know that one nearby area we looked at purchasing, it was flat stated that you would be snowed in for at lest a week or so after the snow dumps - so we should be on good footing there.

2. I agree with you wholeheartedly about our fit-thrower sabotaging the chain and leaving it buried under the snow after he opens it.

3. As far as making an offer for him to plow it, he has neither the equipment nor the experience. He actually just moved to our ranch in the summer of 2015 - he's from the Houston area, where snow does not exist, spending his first winter in Colorado, where the snow definitely does exist. I think that us inviting him to plow that inclining road himself would be putting more liability on us.

4. The policy about clearing the roads with notice has always been an unwritten policy - we just this year actually put it in writing.

5. We tried to explain to him that a shortcut was not worth the cost of plowing that road. Only one property owner enters his property via that road, and he has been very agreeable about letting us know if he was coming so that we could get a path cleared for him.

MelodyM1 (Colorado)
Posts: 9

Posted:

In reply to PitA:

[I don't know how to do the quoted box here] 'rarely used' is not applicable

'used' is the key term

as directors y'all need to either:

permanently abandon the road (?vote required?)

or

fund its maintenance [end quoted box]

------------------------------------

We cannot permanently abandon the road, as there is one lotowner whose only access is via that road.

The problem with funding the maintenance is that, the wonderful developer who set everything up set the Covenants to read, "Annual assessments shall not exceed $300 per year for each lot."

Thus, without a 2/3 vote of the landowners to change the covenants, we are restricted to that amount. 51 lots means $15,300 per year. Re-grading the roads in the Spring takes about $10,000 of that - and snow plowing gets expensive. This year, we've actually not had too much expense in that - but the issue has come up with the unplowed roads being used, and the damage that is happening due to the unplowing and use of. We're looking ahead to the future on how to handle this.

What I'm hoping to talk about in the Annual meeting this summer is to see if we can gather proxies to change those covenenants, giving the board the right to raise that assessment a certain amount over a certain period of time, but meanwhile, here we are. The BOD has been donating extra money beyond our assessments, but we are not seeing the support of the landowners. Thus, we have to cut costs somewhere, and our vote was to do that in snowplowing, by only snowplowing the regularly used roads. (Our only choices were to cut plowing or grading - the two of those account for 95% of our budget).

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By MelodyM1 on 02/23/2016 12:29 PM
"Annual assessments shall not exceed $300 per year for each lot."

Supports your position. Can't spend money that you can't bring in.

Sikubali jukumu. Read all posts at your own risk.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By MelodyM1 on 02/23/2016 12:29 PM
The BOD has been donating extra money beyond our assessments, but we are not seeing the support of the landowners.

That is a bad idea. If owners are unwilling to pay for their own road maintenance then let them suffer the consequences. What entitles these owners to a free ride at your personal expense?

If I was running your show, I would notify all the owners that we spent all the money on lawyers and insurance so there is no money left for fixing the roads.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Melody,

I own a 40-acre parcel in a rural development in Arizona. About 1600 parcels covering several hundred square miles; 300 miles of dirt roads. Only about ten percent of our parcels are lived on full-time and maybe another 20% are occupied part-time; the rest are unimproved.

Snow is not a major issue for us. We get some snow but the association does not plow it at all though some owners plow their own areas.

A bigger problem for us is rain. Monsoon rains in the summer can swell normally dry washes in minutes. We are not helped by the fact that the developer laid out some of our roads in or adjacent to washes. We have one part of our development where the only access is across a large wash; during the monsoons those parcels cannot be reached for weeks at a time. Snow melt and winter rains also cause problems and we do have some problem owners whose driving techniques leave our roads rutted. (One owner in particular has complained repeatedly about rutted roads but someone noted that all the ruts lead up to his front door.)

Our association has no mandate in either our CC&R's or in state law as to how much maintenance we must do or when we must do it. Most of our road grading is done in spring and fall months. BTW, we own our own road grader and the work is done by our own employees.

You might want to review your governing documents to determine exactly what they require your association to do. You may want to consult an attorney to see if there are any state or local laws requiring you to take certain actions.

The sad fact is that not all roads are usable all the time and no prudent person should expect otherwise.

As to signs: Put them up. Inform users that yours are not publicly maintained roads and they travel at their own risk. I strongly disagree with the idea that signs just bring attention to the problem. One definition of gross negligence is to intentionally remain silent when you know of a danger to others.

Chaining a road may bring unintended consequences. About 30 years ago two teenage girls went missing on a winter drive from Colorado to Phoenix. They were found a month later barely clinging to life. They had started down a seldom-used public highway at the beginning of a snow storm and the county locked the gates at both ends of the road without verifying that no one had gone down the road. My suggestion is to forget about the chains and let the owners make their own decision about traveling on your roads.

You wrote "we recognize the liability risk we face." What risk is that and where does the liability come from?

BobD4 (up north)
Posts: 1,002

Posted:

Quote:

Posted By MelodyM1 on 02/23/2016 10:58 AM

. . . you can see the war raging right now. . . . We're in a pickle - we cannot afford to keep the entire ranch plowed at all times, but we recognize the liability risk we face if we do not do something about those "rarely-used" roads that we do not keep in driveable condition at all times.

FredL1 & MelodyM1 (Col):
Your road system’s ownership & whatever road maintenance duties as might be further covenanted , are sure to include Occupiers Liability.

Whatever else the standards include or do not, the $300/yr fee ceiling in the covenants is not automatically the upper limit in necessarily establishing that you met the minimum standard of care.

Respectfully you are not guarantors of 100 % permanent safety without mishaps ever. But the (underfunded) available funds are moot if - IF - there is a higher standard to plow & repair all roads or else to post some as seasonally unmaintained / seasonal dangers / use totally at your own risk.

There may be belief (in self-managed communities) that competent legal advice is unnecessary ( eg if & how the covenants allow some roads to be off-seasoned ? ). But after some loss or injury things often look very different. Anecdotal respect by other road groups may have limited value.

MelodyM1 (Colorado)
Posts: 9

Posted:

Larry, our concern with liability is if someone decides to go raging down that road in the winter (yes, welcome to the world of not-so-bright-ones), and they take a tumble down, the LOA takes the liability for not keeping up with it or marking it as unplowed, travel at your own risk. The specific road at the center of this small war has a steep grade, and drop-offs to the side. Not a road you'd want to be on when you go sliding on the snow and ice.

MelodyM1 (Colorado)
Posts: 9

Posted:

As we go on, I hope that everyone realizes I'm not trying to be argumentative - all of us are just as confused as heck, and reaching out for help. I consider all conversations both help and devil's advocate advice, etc. I just appreciate all of you reaching out to try to help figure this whole thing out.

OK, I went through our covenants, and here's the sections I found that apply:

--------------------------------------------------

Section 2 Common Easements
A Access Roads – Declarant (original Developer) is reserving and granting and conveying a 60 foot wide easement for general ingress and egress to each Lot and a general easement for public utilities across the real property to each Lot. Public utilities will follow access roads, where practical. The easement shall be 30 feet on each side of the centerline on the road system to be constructed by Declarant on the real property.
B Obstruction of Common Easements – No gates or obstructions will be placed upon or block any access roads, unless the access road terminates on the Lot Owner’s property. However, a Lot Owner may place, at its expense, a cattle guard on a common easement, if the cattle guard is constructed to county road specifications and has a gate on one side of the cattle guard, for use by vehicles, livestock, horses or persons otherwise using the road.
C Maintenance of Common Easements – All Common Easements shall be maintained by the Landowners Association.

Section 4 Enforcement and Miscellaneous Provisions
B Powers and Enforcement – In furtherance of its purposes but not otherwise, the Landowner’s Association shall have the following powers:
2. All of the powers necessary or desirable to perform the obligations and duties and exercise the rights of the LOA under the Covenants, including, without limitation, the following:

a. To make and collect assessments… Annual assessments shall not exceed $300 per year for each lot.
b. To manage, control, maintain, repair, improve and enlarge Common Easements.
c. To enforce covenants, restrictions, or conditions effecting [sic] the Development, to the extent the Landowner’s Association may be authorized under these Covenants to make and enforce rules and regulations for the use of Common Easements.
h. To adopt, alter, and amend or repeal By-Laws as may be necessary or desirable for the proper management of the affairs o the Landowners’ Association; provided, however, that such By-Laws may not be inconsistent with, or contrary to any provisions of these Covenants.

--------------------------------------------------

So, my basic reading is that, while the lot owner owns the easement, the LOA is responsible for maintenance. And, thank you Mr. Original Developer - the LOA is limited to $300 a year per lot (why couldn't the jerk have put that in the By-Laws rather than Covenants? By-Laws are easy to change, Covenants are not!)

MelodyM1 (Colorado)
Posts: 9

Posted:

Bob - believe me, I understand about needing to reach out for legal advice. We've got an attorney (lot owner, volunteer for us) who helps quite a bit, but this is a bit beyond her regular casework. She is trying to reach out as well to find out about how to handle different issues. Fred went this route, hoping we could find information quicker through people who have been through it.

NpS (Pennsylvania)
Posts: 4,216

Posted:

Quote:

Posted By MelodyM1 on 02/24/2016 7:15 AM
B Obstruction of Common Easements – No gates or obstructions will be placed upon or block any access roads, unless the access road terminates on the Lot Owner’s property.

Seems straightforward enough. How does this affect what you're trying to do?

Sikubali jukumu. Read all posts at your own risk.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Melody

As I read what has been posted I believe you cannot block off a road. I do believe you could post a sign warning the road is dangerous and one uses it at their own risk, then not plow it or for that matter, not even maintain it.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By MelodyM1 on 02/24/2016 7:10 AM
Larry, our concern with liability is if someone decides to go raging down that road in the winter (yes, welcome to the world of not-so-bright-ones), and they take a tumble down, the LOA takes the liability for not keeping up with it or marking it as unplowed, travel at your own risk. The specific road at the center of this small war has a steep grade, and drop-offs to the side. Not a road you'd want to be on when you go sliding on the snow and ice.

OK, I was not clear.

What body of law requires your association to keep all roads driveable under all weather conditions?

Liability arises when there is a breach of duty. To have a duty, there must be either an obligation under a contract or an obligation created by public policy. The fact that some people want you to keep the roads plowed does not create a duty to do so. Is there a clause in your CC&R's requiring the association to keep all roads open at all times? Is there some obligation in public policy requiring open roads at all times?

I am wondering what liability the county would have if I chose to drive on an unplowed county road and slid off the hillside. Would the county compensate me for my damages or would they tell me I assumed the risk?

MelodyM1 (Colorado)
Posts: 9

Posted:

NpS - dangit, good point - I guess I was just reading that line from the lot owner's side, meaning what THEY couldn't do. I didn't think that one through.

OK, so what I'm reading is that, if we post signs during snow season that this road is not maintained (meaning snow plowed), then we're good liability-wise.

Of course, that still leaves us with the problem that, without being plowed and folks using it as their cut-off-a-half-mile shortcut, the road is going through damage due to that type use.

Sigh. Don't you just love it?

DouglasK1 (Florida)
Posts: 2,046

Posted:

Quote:

Posted By MelodyM1 on 02/24/2016 8:40 AM
OK, so what I'm reading is that, if we post signs during snow season that this road is not maintained (meaning snow plowed), then we're good liability-wise.

Anybody can sue anybody for just about anything. Whether they have a chance of prevailing or not is another matter. Do you have liability insurance? If so, act prudently (post warning signs) and let the insurance company worry about all of the things that might (but probably won't) happen.

Escaped former treasurer and director of a self managed association.

MelodyM1 (Colorado)
Posts: 9

Posted:

Douglas, we do carry liability - it falls in that last 5% of the budget that is not road maintenance. Thank goodness everyone on the board won't touch the idea of cutting costs on that. Thank goodness!

I think that's how this is going to go - warning signs, no chains, keep the insurance. Meanwhile, we'll have to have a 2/3 vote to get assessments raise enough that this is no longer a problem.

BobD4 (up north)
Posts: 1,002

Posted:

FredL1 & MelodyM1 (Col): Comments by Larry B13 & others above are right on the button about the prior signage issue.

1 - Properly worded & posted BEFORE A LOSS OR INJURY, are adequate warning/prohibition signages some kind of an admission of liability at later civil defences ?

A competent legal professional can advise about that in your state, and also adequate wordings / placements / value of prior recording & evidence of prior regular adequate maintenance.

Your state may differ, but there is a widespread judicial concern that remedials or prudent changes AFTER a loss or injury, should NOT in themselves be allowed to literally be held an admission of want of due care.

Such concern has often been expressed as fear of discouraging safety changes.

Others have included that the post-accident scenarios are not necessarily germane to what happened during and before a loss or injury.

( Note that in some jurisdictions like mine, remedials AFTER a civil loss or injury might become admissible as evidence of what the pre-loss risk avoidance SHOULD HAVE BEEN. eg product safety defects; housing standards like highrise window-opening range limiters. I doubt this is what most U.S. states follow )

2 - Do road hazard signages depress property values /discourage buyers ?

Not so easy to generalize including without opinion sampling.

Whatever the answers, safety should prevail. And isn't it also a positive enhancer that the community cares enough to review issues and to post warnings ?

🎯 You've read this entire discussion

Join the conversation with 50,000 HOA & Condo Leaders:

✓ Ask follow-up questions
✓ Share your experience
✓ Get expert advice
✓ Access 350,000 discussions

Create Free Account →

⚡ Takes 30 seconds

Already a member? Log in here