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  1. #1
    Join Date
    Oct 2010

    Question Shared Private Road - Liability, Insurance, and Limits on Speed and Use

    My question involves an easement in the state of: TN

    Along with 10 other properties, we share a deeded ROW. Some have very little of the ROW running thru their property, while some, myself included have the ROW going through the middle of the property. Our deed reads:
    "There is included in this conveyance all rights to a non-exclusive right of way or easement for ingress and egress to and from (state maintained paved road).
    This conveyeance is likewise subject to the rights of others to use of said 40' road as shown on the plat (cabinet & slides) in the register's office"

    The other deeds read: "There is further conveyed a joint non-exclusive easement and right of way, as an easement appurtenant, for the purposes of ingress and egress, said easement and right of way being 40 ft in width and as shown on the Plat (location description)"

    The road is a "circle", and the property owners have tried to hash out a workable agreement for years, to no avail, with many of us putting in time working to maintain the mountain gravel road. The county refuses to take the road over, as it doesn't meet county road standards. Recently a few have offered to do work on the road, and asked for monthly contributions for gravel and equipment rental, from all (something we had actually agreed on several years ago, but never collected on because other items did not reach an agreement.)
    We have all contributed funds.

    However, my family has some safety & liability concerns on how the road is being sloped, given the mountainous terrain, and steep embankments.

    Our property & home is below a long hill on this road (on a neighbor's property), and the ROW on our property also includes a steep hill, which ends in a slight curve, bordered by a deep ditch.
    If someone, in the winter snow were to lose control and slide off of the road above our property, onto our property, or even into the back of my house - who holds the insurance liability? The property owner of that portion of road? the driver? my insurance as they landed on my property? or the whole of the property owners who do not have a written maintenance agreement in place, but who have contributed monies to have the road repaired and failed to place guardrails or slope the road in such a way as to direct sliding into the mtn rather then off the road, down the bank?

    If someone, in the snow, loses control on the steep hill on my portion of the ROW, and up-ends in the deep ditch on my property, am I liable? Does my homeowner's insurance have to pay for them sliding off the road on my property? Does my contribution to the road maintenance make me more liable, even tho I disagree with how the road is being sloped?

    Next question. As a property owner of said ROW, what rights do I have to control speed on the ROW, specifically within my portion of the road? While my neighbors are considerate with their speed, visitors and delivery personnel seem to think the only way to get up a mtn road is to put the pedal down. We are the only property actually bisected by a steep portion of road, so we see this more than any of the other neighbors, and therefore see the need for speed control - for safety, dust and road maintenance, more than the others do (in fact they are downright opposed to any speed control - posted or physical). We also have young children & visitors, so the concern is heightened. Do we have the right to place speed humps on our portion of the road despite neighbor protest? Do we have the right to place them in portions of the road which are not on our property but which we use daily? Do we have the right to fence in animals, allowing the others to open/close two gates at the entrance and exit of our property (and therefore slowing them down)?

    Last but not least - We cross 2 other properties on the ROW to get to our home, with the rest of the properties beyond our home. How much of the road is actually our legal responsibility to maintain? Just the ROW portion on our property? our property plus what we use? 1/10 of the whole?
    Namely - in the absence of repairs/maintenance on the road by the whole, Legally, do we have to take whatever measures necessary to maintain a passable road on our portion of the ROW (like placing water breaks) even if the neighbors are opposed to what those measures may be?

    I know this is a lot to ask, but we are very concerned about the way the road is being worked on currently (rather than sloping the narrow road toward the mtn, they have crowned the road, with half of it sloping toward the embankment - we often get 6-18 inches of snow), what it means for our liability, and what measures we need and can take to ensure safety & speed control, and what measures we are legally obligated to take.

    Thank you for taking the time to answer!!
    Please let me know if I should post in the Home Owners Insurance section.

  2. #2
    Join Date
    Sep 2005
    Behind a Desk

    Default Re: Shared Private Road - Liability, Insurance, and Limits on Speed and Use

    You would want to insure your own property against the possibility of somebody causing damage to your home. You may be able to make a claim against the driver's insurance, but if they fight or aren't determined to have been negligent recovery from their insurer may be delayed or may not be possible.

    Generally speaking, you don't have any right to add speed bumps or otherwise interfere with the use of the road by other holders of the easement. You can post speed limit signs, but they would be advisory in nature. I am skeptical that you have any right to install gates (see Ferguson v Sharp); that could turn on the granting language. (For authority in favor of installing a gate, see Cooper v Polos). The installation of speed bumps would present similar legal issues. Any speed limit signs you post won't be binding, although as long as they don't interfere with the use of the road I doubt that there's a legal impediment to posting them.

    The cost of maintaining a right-of-way could be defined by past practices. I don't see any authority dictating how costs are to be divided; it's a question you should consider running past a local real estate lawyer.

  3. #3
    Join Date
    Oct 2010

    Default Re: Shared Private Road - Liability, Insurance, and Limits on Speed and Use

    I find it hard to believe that speed humps would interfere with the use of a road when neighborhoods and subdivisions all over the country have them installed!
    Hmmm... More thinking to do...

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