Missouri governor signs HB1103, giving courts power to order maintenance of “private roads”

The Missouri General Assembly enacted HB 1103 in the past 2012 regular session, which explicitly grants circuit court judges the authority to impose financial responsibility for maintenance of certain “private roads” onto parcels of real estate that benefit from these roads. Governor Nixon signed the bill into law on July 12, 2012. There are many problems with rural roads in Missouri. Simple questions–such as determining who owns the road, whether it is a subject to property taxes, who has the right to use it, and who is obligated to pay for its maintenance–are often impossible to answer. HB 1103’s provisions regarding private road maintenance change section 228.368 RSMo and add three new sections to Chapter 228 of the Revised Statutes of Missouri. This legislation is an attempt to solve the problem of nobody stepping forward to pay for road maintenance in situations in which no provision was made when the road was created. But its definition of “private road” greatly limits its applicability. According to the new section 228.341, a “private road” means “any private road established under this chapter or any easement of access, regardless of who created, which provides a means of ingress and egress by motor vehicle for any owner or owners of residences from such homes to a public road. A public road does not include any road owned by the United States or any agency or instrumentality thereof, or the state of Missouri, or any county, municipality, political subdivision, special district, instrumentality, or agency of the state of Missouri.” Got that? Many roads are “dedicated” to the public by the language of plats that show the roads. While dedication does not force a city or county to become responsible for maintenance of the road, a road dedicated for public use is not subject to HB 1103, even though no provision is made for its maintenance. Dedication of a road to the public by plat, under section 445.070 RSMo, vests title to the road in the county (if in an unincorporated area) or the city where the road is located, making the roadway exempt from property taxes. In some cases, such roads are simply not maintained, even though they are in residential subdivisions. HB 1103 does not apply to “any road created by or included in any recorded plat referencing or referenced in an indenture or declaration creating an owner’s association, regardless of whether such road is designated as a common element.” In addition, the court has no power to issue a maintenance order, according to section 228.269.1, if there is a “prior order or written agreement for the maintenance of the private road, including covenants contained in deeds or state or local permits provided for the maintenance of a private road…” Subtracting all the exclusions leaves only a few kinds of private roads for which a court can issue a maintenance order, at least under these new statutes :

• roads not owned by any unit of government, not shown on recorded plats providing access to public roads by residences.
• roads not owned by any unit of government, which may be shown on a recorded plat, as long as the plat doesn’t reference a road maintenance agreement or a declaration of covenants that create an owners’ association, if the roads provide access to public roads for residences.

The court’s power to issue the maintenance order for a qualifying private road also depends on the “homeowners who are benefited by the use of an abutting private road, or who have an easement to use a private road” being unable to agree in writing on “a plan of maintenance for the maintenance, repair, or improvement of the private road, including the assessment and apportionment of costs for the plan of maintenance.” If all the above criteria are met, a homeowner may petition the circuit court for an order establishing a plan of maintenance. Section 228.369.2 empowers the circuit court to apportion the costs of the plan of maintenance among owners of abutting the road and holders of easements to use the private road. The costs are to be apportioned either by:

• mutual agreement, or
• apportioned according to equal division, proportionate to residential assessed value, front footage or usage or benefit.

The court may appoint “disinterested commissioners” to determine the plan and apportionment of costs and, in the absence of the agreement of the homeowners on such a person, appoint a “supervisor” to complete the plan of maintenance. The court-ordered plan of maintenance is to be recorded with the county recorder of deeds. Section 228.374 keeps the parties from quickly coming back to court. The plan of maintenance can be modified by a recorded agreement signed by all the homeowners or other benefited owners. Once in place, no court proceeding to amend, modify or restate the court-ordered plan of maintenance may be filed sooner than seven years after the entry of the prior order except upon a showing that the plan of maintenance has become obsolete due to development or division of parcels or that the existing apportionment has become inequitable. Time will tell whether HB 1103 is helpful. While I can see that it would give a judge a clear idea that the legislature wants judges to resolve private road disputes, judges are no strangers to litigants asking them to use their equitable powers to create private road use and maintenance agreements. HB 1103 provides some much-needed guidance to lawyers and judges. It’s a shame that HB 1103 has an exclusion for private roads shown on plats that reference declarations “creating” owners’ associations. At least in the last 15 or 20 years, developers in the Missouri Ozarks have frequently recorded declarations of subdivision covenants that mention owners’ associations and which authorize these associations to assess for and maintain private roads. Creation of an owners’ association occurs through incorporation, not mentioning an association in a declaration. Unfortunately, many owners’ associations named in declarations have never been incorporated. If incorporated, they never have meetings to adopt budgets and impose assessments. If incorporated, many of them are dissolved for failing to file annual reports with the Secretary of State. Private roads in these subdivisions are not subject to HB 1103. HB 1103 gives the right to petition the circuit court only to owners of residences abutting the private road and those who hold easements (whether or not owners of residences) to use the private road. An owner of an abutting lot without a residence, who plans to build a residence if a road maintenance plan is in place, seems to be left out. Suppose a farmer owns the road, but has subdivided land along a section of the road and sold it for residences. That farmer has no right to seek a plan of maintenance and is also exempt from assessment, unless his residence is abutting. Please remember that I cannot and will not give advice to you about your specific situation unless you become my client, which involves signing an engagement agreement and paying me. If you need legal advice, consult a lawyer in your community, where you can expect confidentiality and local expertise. Please do not post information here about your circumstances, because it can be used against you later.