Deed-Restricted Road Associations

An "association" is defined as a "nonprofit corporation or unincorporated association created for the purpose of managing a common interest development." (Civ. Code § 4080) It is a private organization managing a residential development. HOAs are generally associated with developments consisting of single-family homes (SFH) on individual lots. The homes can be either detached, standalone structures or townhomes. Although the term is associated with single-family homes, it is sometimes used generically to refer to all forms of residential associations.

Voluntary Road Associations

There are no CC&Rs that give the Association the power to compel owners to pay for road work. Instead, he identified Section 845 of the California Civil Code as the sole source of the association's authority in this area, describing it as the only power the association actually has. He referenced Holland v. Braun, 139 Cal. App. 2d 626 (1956) (discussed below) as the leading case on the scope of that authority.

File small claims actions to force non-paying owners to contribute to road costs. 

According to both the association’s bylaws and Articles, its primary purpose is expressly “for the purpose of maintaining said right-of-way easements in repair, and, in order to achieve that end, to collect annual or other contributions to pay for said maintenance from said owners and to expense the funds so collected on the maintenance of said right of way easements, all as provided by California Civil Code § 845.” B. The bylaws might define a secondary purpose. 

CALIFORNIA CIVIL CODE § 845.
California Civil Code § 845 imposes a duty on the owner of any easement in the nature of a private right-of-way to maintain it in repair. Where the easement is owned by multiple parties or is attached to parcels under different ownership, the cost of maintaining it in repair must be shared by each owner pursuant to any agreement among the parties, or, in the absence of an agreement, proportionately to the use each owner makes of the easement. Accordingly, this Code section gives the Association the authority to enforce required contributions for road maintenance expenses in the community.

The statute’s language is deliberately narrow. It speaks only of the obligation to “maintain it in repair” and the sharing of “the cost of maintaining it in repair,” not broader maintenance activities. In Holland v. Braun, 139 Cal. App. 2d 626 (1956), the District 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. 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, quoting prior authority, “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.” Id. 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 § 845.

Holland v. Braun established the foundational rule that co-owners of a private road easement may only be compelled to contribute to genuine maintenance and repair costs but not to major improvements, and that such compulsion requires either consent or a pre-existing agreement. This rule interprets California Civil Code § 845, which governs private right-of-way maintenance obligations. Only one published California appellate decision has expressly cited Holland v. Braun by name: McManus v. Sequoyah Land Associates, 240 Cal. App. 2d 348 (1966), which distinguished rather than rejected Holland. McManus extracted and affirmed the general rule from Holland as a settled proposition of California law:  nonconsenting co-owners of an easement in the nature of a right-of-way may be compelled to contribute to the keeping of the way in repair, but they may not, without their consent, be compelled to contribute to the cost of major improvements."

The Holland v. Braun rule, as affirmed and applied by subsequent California appellate decisions, creates a clear but sometimes difficult-to-apply boundary for private road easement co-owners. Assessments for genuine 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 under § 845 against non-consenting co-owners after written demand
and, if necessary, through the judicial process. By contrast, assessments for major improvements such as paving a previously unpaved road, widening, significant regrading, or other work that creates something fundamentally different from what previously existed, cannot be enforced against non-consenting co-owners under § 845 alone.

THE BROAD STATUTORY POWERS OF A NONPROFIT MUTUAL BENEFIT CORPORATION.
The California Nonprofit Mutual Benefit Corporation Law expressly 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. Cal. Corp. Code § 7140.

Among the enumerated powers, Cal. Corp. Code § 7140(g) specifically authorizes the corporation to “levy dues, assessments, and admission and transfer fees.” Section 7140(i) authorizes the corporation to “assume obligations, enter into contracts, including contracts of guarantee or suretyship, incur liabilities, borrow or lend money or otherwise use its credit,” which may arguably cover contracts for landscaping services, drainage work, and legal representation. Section 7140(e) authorizes the corporation to “indemnify and purchase and maintain insurance on behalf of any fiduciary” of the corporation. Section 7237(2)(i) provides the Association with the “power to purchase and maintain insurance on behalf of an agent of the corporation against any liability asserted against or incurred by the agent in that capacity or arising out of the agent’s status as such whether or not the corporation would have the power to indemnify the agent against that liability under the provisions of this section.”

Cal. Corp. Code § 7351 governs the levy of dues, assessments, and fees, providing that a corporation may levy them “pursuant to its articles or bylaws.” The Association as a Mutual Benefit Corporation may lawfully under its articles or bylaws provide for such fees and dues from members as it wishes and may provide for how such collected funds are used for Association business. Cal. Corp. Code §§ 7140, 7351. This may include insurance. Id., § 7237. However, no person is liable as a member for obligations arising from membership unless the person was admitted to membership upon that person's application or with the person's consent. 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, shall be considered consent to such membership for the purpose of this section. However, this is not the case with the Association as there are no recorded CC&Rs binding upon residents to be members of the Association. Therefore, the only legal mechanism to enforce participation by non-consenting residents in the community is through California 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 by residents of road maintenance expenses but cannot force residents to pay other expenses. 

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