High Falls, NY asked in Construction Law and Land Use & Zoning for New York

Q: Hello. I live in a road that has a shared egress. What is a common road agreement for a shared road? How is it split?

There are 3 owners that live on the adjacent property. One is a farm with 28 acres, 9 homes and businesses. One is a restaurant with 2 acres. I own 1.9 acres and have 2 homes on my property. The farm with 9 homes and businesses has the most land and travels the whole length of the shared road. They have been responsible for the deterioration of the road since they bought the land 5 years ago. No one wants to sign an agreement and the restaurant owner is fighting with the farm and now wants nothing to do with the road. How does the road get repaired if no one will take responsibility or speak to each other? Frustrated, as this has been ongoing for 5 years. The farm keeps building and subdividing and the road is getting worse and worse.

1 Lawyer Answer
Peter Christopher Lomtevas
Peter Christopher Lomtevas
Answered
  • Brooklyn, NY
  • Licensed in New York

A: The type of easement described here is a roadway easement for ingress and egress to another parcel of property. In this case, ingress refers to having the right to enter a property, while egress refers to the right to exit a property. An example of this type of easement is a shared roadway through parcels of farmland where a neighbor may own the property and roadway, but another person not owning the roadway has the right to drive on the neighbor’s property to access his home.

In New York, a roadway easement comes with no other obligations, rights or privileges. One of those is the maintenance of the shared roadway. An agreement is needed to create rights and obligations to ensure the roadway remains usable throughout ownership. Such an agreement usually contains - though this list is not exhaustive:

The legal description of the property that has the right of way on it

All parties that have the right to use this access

How the responsibility for repairs is to be shared by the parties

How the costs for repairs will be incurred by the parties and how emergency repairs will be addressed

The consequences for non-participation in the maintenance

The asker wants to know what is the a common (legally acceptable) split among the owners. There is no common (legally acceptable) split. There is a mutually agreed upon split which could be anything the parties using the roadway may agree to. Typical language in such a provision will be:

2. Sharing of Costs and Expenses. The parties shall share the expenses as follows: owner 1, his/her successors and assigns shall pay X% of the maintenance and repair of the driveway that is jointly used. Owner Y, their successors and assigns shall pay X% of the costs of maintenance and repair of the jointly used roadway that is used solely by them. Both owners have the option of hiring sow removers or shoveling the roadway themselves and sharing the cost X%-Y%.

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