By Deborah Goonan, Independent American Communities
QUESTION:
I read your article about private roads and the need for out of the box solutions for the problem. I very much agree. We have a very small HOA, less than 50 homes, in northern Virginia. There are several private roads that provide access to about half of the lots. The other lots are on the main state road.
The cost of paving our road in this community has about tripled in the 30 years we have lived here. We just got an estimate for almost $100,000 which would be shared by a dozen homeowners. The problem is everyone will want the road paved, but there will be some that won’t pay in. Then everyone else will have to pick up the cost, an added burden to the other homeowners. We would either have to get an attorney to take them to court or file liens which can take years to resolve. Plus there are several older retired residents who live on fixed incomes who may not be able to pay. This is not sustainable.
What recommendations do you have for starting to explore options? I have reached out to a state delegate and my county supervisor. We hope to have meetings with them soon. That is all I have done so far, but hope you may have some thoughts on how to get some action from the county and/or state. Are there things we should do plus steps to avoid? Thank you.
K.F.
Fairfax County VA
ANSWER:
K.F., you and your neighbors certainly have a big problem on your hands. And, as you know, your community is not the only one trying to figure out how to pay the cost of fixing their private roads.
The reasons for this situation vary. One common reason is that the homeowners association (HOA) has not raised its assessments (dues) in many years. So now there’s not enough money set aside in a reserve account to cover the high cost of repaving.
Or maybe the HOA is dormant, because homeowners lost interest in enforcing the restrictions or serving on the board of directors.
Sometimes the Declarant (developer) fails to follow the proper procedure to create an HOA to collect money for future road maintenance. Homeowners don’t discover this fact until their roads start to crumble, and the city, county, or state government informs them that they own private roads.
Whatever the reason, the outcome is the same.
Small communities, big cost burdens
Small communities such as yours often discover they need to collect thousands of dollars from each homeowner to pay for repaving.
According to your email, if each owner on one street were to pay an equal share for repaving, it would require a special assessment of more than $7,000 per lot owner. That’s a lot of money, especially for homeowners on a tight budget.
However, your HOA board should make sure to thoroughly review your governing documents. Consult a reputable real estate or land use attorney, if necessary.
I make this suggestion because, as a non-attorney, I’ve read many Covenants, Conditions, & Restrictions (CC&Rs) that require all owners in the subdivision to pay for repaving of streets in the community, rather than dividing up the burden by owners on each street.
Of course, it’s also possible that each owner is responsible to pay for maintenance of the road that leads to their own house, treating each road almost as if it were a shared driveway.
So start by reading your CC&Rs and reviewing the community’s plat map filed with your County. Those document will help you verify which property owners are required to pay for repaving private roads, and how the costs are to be divided among members of the association.
Keeping your roads private?
Next, arrange for a special HOA meeting and discussion, to decide if you and your neighbors still want to keep your roads private. Arrange for an official vote on the issue.
If most owners want to keep the roads private, your HOA could consider borrowing money to do the work, and repaying the loan over time. But this option is unattractive to most HOA and homeowners, due to the added interest payments.
Repaying a loan also means HOA assessments must increase to cover the cost. That can result in a bigger collection burden for HOA board members.
What about government assistance?
Unfortunately, you can expect your County and State officials to resist the idea of helping homeowners fix private roads with grants funded by public “taxpayer money.” Sometimes politicians selectively forget that owners of homes governed by HOAs pay property, sales, and income taxes just like homeowners who own homes on public streets and roads.
Is there another solution?
With clear knowledge of your governing documents and the wishes of your neighbors, open up a discussion with your County Commission and state Representatives about the option of converting your private roads to public roads.
In Fairfax County, Virginia, most public roads are maintained by the state, not the County.
(In other states, Counties play a larger role in road maintenance.)
Understand that, in order for Virginia Department of Transportation (DOT) to take on future road maintenance, affected owners in the HOA must unanimously agree to bring the private roads up to State construction codes and safety standards.
See § 55-50.4. Private roads; public use; maintenance and improvements.
Converting private roads to public roads is not a new concept. IAC has documented several cases of property owners working with local and state governments (in other states) to set up road districts (special tax districts), with consent of property owners.
See the following posts for example:
AZ County Improvement Districts proposed for road repair in HOAs
Pima County government explores options to pay for much-needed road repairs
How does the road conversion process work?
Generally, the HOA or affected homeowners must be willing to pay for road improvements with increased annual tax assessments, spread out over 10 – 20 years. The money is collected as part of property tax bills, not by the HOA.
Note that state or local grants, or public-private cost-sharing arrangements may be available, if your community or property owners qualify. That could help offset part of the cost of repaving your roads.
See VDOT’s Getting Roads Accepted into the Secondary System of State Highways for details.
Once all homeowners agree to repayment terms, the County completes the heavy construction work needed to bring private roads up to VDOT standards. Once complete, the roads can be officially accepted by VDOT for public use and maintenance.
Keep in mind that, even if you’re willing to pay for better, safer roads, you may still run into resistance from local or state government officials.
Remind your elected officials that you and your HOA neighbors have paid your fair share of property, sales, and fuel taxes over the past 30 years.
You can also point out that the original substandard construction of your private roads was approved and permitted by Fairfax County. Current homeowners shouldn’t be punished for a short-sighted decision of past County Commissioners.
Most importantly, in order to maintain a stable tax base, it’s in the public interest to ensure safe and solid roads. Crumbling and broken down streets reduce property values. That, in turn, reduces tax revenue at the local level, and makes the state less attractive to future residents and businesses.
In conclusion, if you and your neighbors can unite in finding a public solution, be assertive about your expectations, and treat your elected representatives with professionalism and respect, you’re more likely to succeed in relieving your HOA of this unsustainable financial burden.
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