Maintenance of a Common or Shared Driveway or Private Road in Oregon. What if there isn’t a written agreement?

As noted in a previous post, this question was answered in Washington in the Buck Mountain case. In Oregon, the Legislature has addressed the question – ORS 105.170-185, giving powerful tools to users of shared easements to ensure that they are adequately maintained.

Under this statutory system, if a Road Maintenance or similar agreement is not in place, or to the extent that the agreement does not address the question, then costs of maintenance shall generally be based, absent fault, upon proportion of use (i.e. the house that is farthest from the public highway – the person who uses the greatest distance of the easement, pays the most). Other factors that may be considered, such as actual usage – number of trips, weight of vehicles, etc.

Importantly, if a user fails to pay their share, then they may be liable for attorney fees and costs.

Equally important, a user of an easement in need of maintenance may apply for the appointment of an arbitrator to apportion the cost of needed repairs before the repairs are made. This right may be invaluable when the cost to repair is high or the cooperating users do not want to bear the cost of repair and the contractor wants certainty before proceeding.

If you have a shared easement of any type, you do not have to be held hostage to an owner who refuses to approve needed maintenance.

This blog post is offered for general information and educational purposes only. It is not offered as legal advice and does not constitute legal advice or opinion. Although I intend to keep this information current, I do not promise or guarantee that the information is correct, complete, or up-to date. You should not act or reply upon the information in this post without seeking the advice of an attorney.

One response to “Maintenance of a Common or Shared Driveway or Private Road in Oregon. What if there isn’t a written agreement?”

  1. My husband and I purchased a piece of land as part of a short plat that is at the entry of a private road that is nicely paved with black top. We live in Graham WA. On the seller disclosure statement dated 1/4/2013 they indicated no maintenance agreement. On 1/17/2013 they completed a maintenance agreement, but did not tell us. We were almost ready to close on the property and were given a copy of the agreement by the title company along with other documents. One of which was an easement for 39 properties mostly vacant across our property that go back further from ours on the private road. The maintenance agreement is only for the short plat our lot and the lot next to ours. The easement has a description of “a sixty foot non-exclusive easement for ingress, egress, utilities, reconstruction, use and maintenance over, across, under, upon and along the following property.”
    My question is why would they have a maintenance agreement only for the short plat and not include the 39 parcels with about 8 homes already built before we built our home? Also, are the other properties required to pitch in for maintenance it says “use and maintenance over”?
    Also the road use maintenance agreement has a 60 foot easement. It includes the property owners part of the easement across from our property. Our property only is half of the road, 30 feet, half the road. The parcel across from ours was not included in the agreement at all. Can we get this disputed in court? It seems not to be valid?
    We could really use some legal advice.
    Thank you so much,
    Annette

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