How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site. Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask Attyadvisor Your Own Question
Attyadvisor, Attorney
Category: Real Estate Law
Satisfied Customers: 7217
Experience:  29 years of experience in General Practice, Real Estate Law and Estate Law.
Type Your Real Estate Law Question Here...
Attyadvisor is online now
A new question is answered every 9 seconds

I am a homeowner on a private road in Orinda, Contra Costa

This answer was rated:

Hello, I am a homeowner on a private road in Orinda, Contra Costa County. The road was designated as private decades ago - the developer offered the County to make the road public and was refused. The City followed suit. Our neighbors have been maintaining the road without an agreement for about 20 years. Two neighbors have paid nothing (PGE, owner of 3 lots along the road) and one neighbor has underpaid. I've read posts hear about CC Sect. 845, which I read to mean that without an HOA, owners are to maintain according to their use of the road. That law actually supports those neighbors not contributing because they use the road least. However they own much of the roadway. Is there any other legal relief for compelling them to pay toward maintenance? The two owners have the worst condition of the road along their property lines so there is a potential safety and access hazard posed to everyone on the road. Thoughts?
JA: Is this a public or private road? Has there been damage to your vehicle from the road conditions?
Customer: As stated, the road is private. That's the problem. My question doesn't concern vehicle damage.
JA: Where is the property located?
Customer: on Mira Loma Road, Orinda, California
JA: Anything else you want the lawyer to know before I connect you?
Customer: No.

Welcome and thank you for your question. I will be the professional that will be assisting you.

Is this road within the HOA community?

Customer: replied 2 months ago.
The road does not belong to an HOA currently.

I am just trying to clarify if the road is within the community? The County has made it clear that they do not road. Someone owns this road.

Customer: replied 2 months ago.
The road is within the City of Orinda limits but is private, so the road is owned by the homeowners.

Have you looked at the plat of the subdivision to see if the road is within the boundary lines?

Customer: replied 2 months ago.
There is no question that we are a private road within Orinda and that the City does not own and refuses to maintain our road.
The subdivision map is on file with the County Recorder, along with the text showing that the developer offered the road for public dedication to the County and was refused as to certain streets, including ours. The County has also refused to fix any potholes or make repairs.

I completely understand that this is a private road. As such the city has no duty to maintain the road unless they accept the road. We need to know who owns the land that the road is situated upon. I have been a land use attorney for 29 years in multiple jurisdictions for decades. I have dealt with this issue countless times.

The point is that if it is within the subdivision and the owners living next to the road do have part of the road included in their legal descriptions this would be the duty of the HOA to maintain. If the owners actually share the road which would show up on their surveys or in the legal description on the deed to what they owe those owners would be responsible for repair.

There would need to be a road maintenance agreement prepared and signed by those with an ownership interest and recorded in the county

These are actually very simple matters once you determine who owns the road.

Customer: replied 2 months ago.
There is no longer an HOA and no written maintenance agreement. Our street belonged but then was removed from an HOA pursuant to a court judgment many years ago. My understanding is that each owner owns the road adjoining their property up to the midline of the road. So, getting back to my original question, absent an agreement, is there any case law, statute, public safety consideration, post office access or other legal means for getting PG&E or other neighbors to pay for maintenance of their share of the road? We don't want to wait for complete road failure before they take responsibility for their land.
Customer: replied 2 months ago.
Wondering if we might be getting tripped up by the term HOA? Homeowner Association or Homeowner Agreement? We have neither. Hope that helps.
Customer: replied 2 months ago.
Rereading your message - you're making a distinction between the road and the land under the road. Interesting. I'm assuming that the ownership of each property up to the midline of the road includes both land and road.

That does make a difference.

Based on what you stated the road belongs to the adjoining property owners. There needs to be a road maintenance agreement prepared and recorded. There is not question that all owners are responsible to maintain the road. There is also no question that certain people will refuse to contribute and as such there need to be consequences.

As it stands now the owners contributing would need to file an action against those that are not contributing or maintaining the road. You will want to have a road

maintenance agreement prepared and signed by those with an ownership interest in the road recorded in the county. In the meantime this can be ordered by the court if all neighbors do not agree. Further, those neighbors who are contributing have a lawsuit against those that are not even without the road maintenance agreement as it is clear this is a private road and that it is the responsibility of all owners.

The law that requires maintaining the road and allows other owners to seek reimbursement is California Civil Code Section 845.

I can provide a road maintenance agreement template if that would help?

Customer: replied 2 months ago.
that would be great! I appreciate your opinion. Referring to your statement "this can be ordered by the court of all neighbors do not agree" - does "this" mean that the formation of an agreement can be ordered? Not sure what you mean. I'd anticipate that the same people who won't pay now voluntarily will refuse to sign an agreement but it's worth a try. The part of CC 845 that I'm still mulling over is the part about each person contributing according to their use of the road. This gets these people off the hook, wrongfully so. They own a lot but use the road little - one as a utility, the other because they occupy a corner lot sitting on two roads. One they use and the other (ours) they mostly don't.

There are already required to pay. An agreement would clarify the terms.

This will help for right now:

"California Civil Code requires the cost of maintenance for privately maintained roads to be shared equitably by the landowners benefiting from those roads.In the absence of an agreement, the cost shall be shared proportionately to the use made of the easement by each owner. This is enforced through civil action, in other words, by neighbor suing neighbor. Private road maintenance agreements vary by jurisdiction, so local law should be consulted for specific requirements."

Yes a court can order the formation of an agreement.

Customer: replied 2 months ago.
Very helpful. I clicked on the link. Possible to send the template you mentioned that might work for our city/county?

I will provide one that would work throughout the State. The beauty is that they are already required to pay and a court would have no hesitation to order them to pay. Give me a few moments please.

You modify the beginning of the agreement to state:


WHEREAS, desire to create an entity and mechanics for the maintenance of roads and easements within and adjacent to that certain tract of land as shown on the map for recorded in the office of the County Recorder, County of ________, State of California on the day of , 20 , in Book of at Page , and hereinafter referred to as “Development.”

WHEREAS, the parties to this instrument enter into this Road Maintenance Agreement of this road as owners of the road, for the purpose of enhancing the value of said property and deeming it to be to the advantage and best interest of the owners of said real property,

Please do not hesitate to ask me any additional questions that you may have with regard to this matter. It would be my pleasure to continue to assist you.

If you would be kind enough to rate my service positively so I will receive credit for my work from the site I would appreciate it.

You may not be familiar with how the site works. The Attorneys to not receive credit from the site for their time or with customers unless the customer provides a positive rating. We answer your questions in good faith, hoping for a good faith response regardless of whether the law is in your favor or not. If you were unhappy with my service please let me know that you would prefer to work with another Attorney and I will opt out. Thank you for your consideration.

Thank you for using JA! We appreciate your business.

Customer: replied 2 months ago.
Many thanks for your thoughtful advice and patience.

My pleasure. If you would be kind enough to rate my service positively on the rating scale above, 5 Stars, so I will receive credit from the site for my work and my time I would appreciate it.

Thank you for using JA!

Customer: replied 2 months ago.
My last question in this chain, I promise! Is it likely that the court judgment which withdrew the owners at that time (1985) from the HOA would preclude their being joined to a new agreement? If the owners were new, and some are, then maybe there's hope for making a new agreement?

No, if they are adjoining land owners they are required to maintain.

Thank you.

Customer: replied 2 months ago.
Very good. Thanks again for working with me on this very sticky wicket. :) Have a good weekend.
Customer: replied 2 months ago.
The link to the agreement reported an error....

This is a link for a different agreement. Let me see if I can pull up another link for the one I provided initially.

Attyadvisor and other Real Estate Law Specialists are ready to help you
Customer: replied 2 months ago.
Excellent resources. Thanks again!

You are most welcome.

Do you see the rating scale above?