Mandatory Road Associations

CID Road Association. A road maintenance association is a private organization formed to share the costs and responsibilities of maintaining a private road. It can either be voluntary or mandatory. If a developer creates one, it may be in the form of a common interest development, with the road as the common area. The road does not need to be a separately owned lot. More often than not, the road exists as reciprocal easements. CC&Rs are recorded against each lot in the development, obligating owners to pay assessments to maintain the road. If owners fail to pay their assessments, the association can record a lien against the lot and foreclose on it. As a common interest development, the association would be subject to the Davis-Stirling Act.

Non-CID Road Associations. To avoid all Davis-Stirling requirements, a developer could impose a maintenance agreement tied to property deeds. The association would not have the power to lien and foreclose to collect delinquent assessments. The association would collect delinquent assessments by filing a breach-of-contract action. 

Voluntary Road Associations

In a voluntary road association, there are no CC&Rs giving the association the power to compel owners to pay for road work. Instead, voluntary associations typically have bylaws, whether incorporated or unincorporated. The bylaws describe the association's purpose and the scope of its authority. 

Enforcement Authority. Civil Code § 845 provides the authority to compel owners to pay for road maintenance. Each owner must share the cost of maintaining and repairing the road under any agreement among the parties or, in the absence of an agreement, proportionately to each owner's use of the easement. In the absence of an association, section 845(c) states that the other property owners may sue for a court order to compel contributions to road maintenance. If an association is formed, it can enforce required contributions for road maintenance expenses. The statute’s language speaks only of an owner's obligation to maintain and repair the road. 

Maintenance Defined. The Court of Appeal held that paving a dirt road (which had previously been maintained only by grading, oiling, and filling holes and ruts) was not “maintaining it in repair” within the meaning of § 845. (Holland v. Braun (1956) 139 Cal. App. 2d 626) The court relied on the established principle that the word “repair” in its ordinary sense relates to the preservation of property in its original condition and does not carry the connotation that a new thing should be made or a distinct entity created. As the court stated, “to repair means to mend an old thing, not to make a new thing; to restore to a sound state something which has become partially dilapidated, not to create something which has no existence.” The court concluded that the work performed (cutting trees, installing culverts, regrading, widening and paving the road) constituted a major improvement, not a repair, and that the non-consenting owners could not be compelled to contribute to its cost under section 845. Assessments for maintenance and repair such as grading, pothole filling, culvert cleaning, bridge repair after storm damage, and similar work that restores the road to its prior condition are enforceable through the judicial process, i.e., filing suit in Small Claims court or Superior court. 

Nonprofit Corporations. If the road association incorporates, the Corporations Code grants a nonprofit mutual benefit corporation “all of the powers of a natural person” in carrying out its activities, subject only to limitations in the articles or bylaws and compliance with applicable law. (Corp. Code § 7140) Among the enumerated powers, it authorizes the corporation to assume obligations, enter into contracts, incur liabilities, and borrow money, which would cover contracts for landscaping services, drainage work, and legal representation. It also authorizes the corporation to indemnify and purchase and maintain insurance on behalf of its board members. Corporations Code § 7237(2)(i) gives the association the power to purchase and maintain insurance.

Corporations Code § 7351 governs the levy of dues, assessments, and fees, providing that a corporation may levy them “pursuant to its articles or bylaws.” As a mutual benefit corporation, an association may provide for such fees and dues as it wishes and may specify how it uses the collected funds for association business. (Corp. Code §§ 7140, § 7351) This may include insurance. (Corp. Code § 7237)  The ownership of an interest in real property, when a condition of its ownership is membership in a corporation, such as through recorded CC&Rs, is considered consent to membership for the purpose of this section. However, this is not the case if no recorded CC&Rs bind residents to be members of the association. Therefore, the only legal mechanism to enforce participation by non-consenting residents in the community is through Civil Code § 845, which imposes a duty on the owner of any easement in the nature of a private right-of-way to maintain it in repair. In short, the Association can enforce payment of road maintenance expenses by residents but cannot force residents to pay other expenses. 

Permanent Road Divisions

 
Another mechanism to enforce road maintenance is to form a "Permanent Road Division (PRD)." A PRD is a special assessment district formed under the California Streets and Highways Code (Sections 1160–1197) that allows property owners in unincorporated areas to collectively fund private road maintenance and improvements To establish a permanent road division, residents petition their county public works department. If approved, the county maintains the road and collects assessments through annual property tax bills. Residents usually initiate a PRD via a petition, which then requires voter or property-owner approval (often a two-thirds majority) in compliance with Proposition 218. Counties may also require them for new subdivisions.

ASSISTANCE: Associations needing legal assistance can contact us. To stay current with community association issues, subscribe to the Davis-Stirling Newsletter.