Legal Question in Real Estate Law in California

Sharing of private road repair costs

There are 41 property owners that share a common private paved road that needs to be repaved. Forty of the 41 owners have agreed to pay their fair share to repave the road that provides access to all 41 properties. One property owner, an out of town real estate investor, refuses to pay their share. Is there a precident case that can be used to pressure them to pay their share? The area is not covered by a Homeowners Association or special assessment district. The total cost for the repaving is $46,000 and the property that still owes their share is being billed about $1,700 based on a formula of how many feet of the road are used for access to the property. The formula was tested in court nine years ago and judged to be fair. I'm looking for a case number if anyone knows of one.

Fallbrook, CA

Asked on 11/09/05, 8:12 pm

3 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Sharing of private road repair costs

The most on-point case I found in Westlaw's annotations to Civil Code seection 845 is a Santa Cruz County case, Healy v. Onstott (1987) 192 Cal.App.3d 612. In that case, the Court said that apportioning maintenance costs based upon relative use (as the statute requires in the absence of an agreement) must necessarily be done with a broad brush, and arbitrators need not distinguish between single-car families and two car families, or who gets LPG deliveries by heavy truck vs. heating with electricity; but, on the other hand, should take into account relative distance from the public street AND the distinction between a vacant lot and an improved and occupied parcel.

The Court hastened to add that it was not declaring that owners of vacant lots got no benefit from the maintenance, or that they necessarily owed nothing.

I would conclude, however, that an absentee owner of an unimproved lot has a legally-valid argument that, under CC 845, he should pay a much lower assessment.

The formula that you say was tested in court and found fair was perhaps tested without the issue of undeveloped lots being considered. In any event, I doubt that a formula that conflicted with the Healy principles would survive an appeal, since the Healy case seems to be a sound and practical intepretation of CC 845.

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Answered on 11/10/05, 1:12 am

Ken Koenen Koenen & Tokunaga, P.C.

Re: Sharing of private road repair costs

There is something in the civil code that requires a co-owner or user of land to be responsible for a pro-rata share of repairs. I do not know what it is off the top of my head.

You would probably be successful in small claims court.

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Answered on 11/09/05, 8:23 pm
Carl Starrett Law Offices of Carl H. Starrett II

Re: Sharing of private road repair costs

If there is no written agreement regarding how to share maintenance costs of the road easement, then Civil Code Section 845 requires all owners to share proportionately based on the amount of use of the easement. That same code section describes your legal remedies when other owner(s) of the easement won't cooperate in maintaining the easement.

You mentioned a court case testing the formula. If you have a name of one of the parties to that lawsuit, the website for the San Diego Superior Court will let you search for the case number. Once you find the case number, you can go to the court house and review the file.

If you need further assistance, feel free to contact my office.

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Answered on 11/10/05, 12:04 am

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