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February 25, 2021

It’s the Law: When the rubber ruins the road

I suspect that the majority of houses in Santa Cruz County front a public road. For those homeowners, their headache consists of begging Public Works to fix the potholes that appear.
Then there are those who live on private roads — many of which are in Scotts Valley and the San Lorenzo Valley. Some of these have homeowner associations that levy annual dues delineated in their covenants, conditions and restrictions, commonly called CC&Rs.
What, however, do homeowners do when they live on a private road and there is no HOA, or even a simple road association, in their title documents?
People can and do fight like the Hatfields and McCoys over who should maintain the road, how it should be maintained and — the granddaddy of all — how much each should contribute.
Although my mother told me it takes two to argue, I’ve found it only takes one…one knucklehead that just doesn’t want to get along or refuses to pay his or her fair share to assure that there is a road.
Or, you get the guy who refuses to share the road. A few years ago, I got a call from a client who came home only to find his section of the road bollarded off. His friendly neighbor sank six-inch steel lally columns into the road while my client was at work. I’m not making this stuff up.
At least as long ago as 1939, our legislators recognized that without some kind of law to guide this dilemma, there would be constant spitting matches about how much each person who uses the road should pay.
To the rescue is Civil Code Section 845. That section holds that if there is no formal road association, then everyone who uses the road as an owner, or as one with an easement, must pay a proportional share to maintain the road.
In essence, Section 845 confers a road association upon every private road in the state should there not already be a road maintenance agreement in place.
A question I’ve been asked is whether the informal road association can request, or rather demand, payment before maintenance is performed on the road.
The code is specific that an action to enforce a demand for payment may be made “before, during or after performance of the maintenance work.”
Most informal road associations will likely want payments before the work is performed simply because the contractors doing the work are going to want to be paid soon after completing the work. If they’re not paid, then all owners along the road may face litigation.
Can a road association demand payment without getting a court order? It can, but enforcement comes through the courts. You can’t send Guido over to the neighbor with an offer he can’t refuse.
Up until a couple of years ago, the code provided that an arbitrator could be appointed by the superior court to apportion costs amongst owners. But if one disagreed with the arbitrator’s decision, he or she could take a second bite of the apple in superior court.
The procedure has now been simplified. A claim can now be brought in small claims court — assuming the amount owing is less than the jurisdiction of small claims court. If over that jurisdiction, then you go to superior court.  
The code states that the court has the option of sending it to judicial arbitration, but I doubt that will happen in Santa Cruz County.
It has long been the opinion of most lawyers and judges I know that judicial arbitration is a waste of time. It is more likely you will be sent to judicial mediation.
In arbitration, the arbitrator makes the decision. In judicial mediation, the parties are the ultimate decision-makers with the judge acting as a guide and facilitator.
While most of us recognize that we need to pay our way, there will always be that person on the road who just doesn’t want to pay his fair share.
I agree that there are times when maintaining the peace is more important than demanding dollars, but the courts are there if no amount of cajoling brings the neighbor around.
– Gary Redenbacher of Scotts Valley is an attorney in private practice. E-mail him at [email protected]