These statutes may not be helpful in all situations, but if you peruse them you may find something that applies to your situation. These include Real Estate Disclosures, Operation of Snowmobiles, Operation of ATV's, Landowner Liability, and Parking (so as not to obstruct road).
REAL ESTATE DISCLOSURES
One of the problems we have seen for years in Maine ROADWays is that a person could buy a piece of land without realizing that the road that gave access to it was not maintained by the public. Then people would tell them, "You knew what you bought when you bought it," or, "If you had done your due diligence you would have known," or, "The information was available at the time you purchased your property, which, if understood or pursued, might have affected your decision to purchase or develop the property." Sometimes that's because the seller hides the facts. Sometimes it's because the facts are not readily available. And sometimes, as was the case with our property, the status of the road or the legal definition of its status actually changed after the property was purchased, so there was no way of knowing at the time of the purchase what the road was going to become.
MMA (Maine Municipal Association) has claimed for years that there is no excuse for a person not knowing a road is abandoned, because it will be all grown up with trees and brush. Unfortunately, that's not always the case. In some cases, towns have declared roads abandoned when they are still in use and even when they have, in fact had some town maintenance within the last 30 years. In other cases, one of another of the abutting landowners has done maintenance at his own expense, and it may not be obvious that the maintenance was done by one individual who may have no intention to continue to keep the road passable.
To begin to address this issue, in 2017 we worked with the Realtors' Association on a bill they had presented, to make sure that real estate disclosures would include information not only when access to a residential property is over a private road, but also when access is over ANY road not maintained by the public. The definition of "public way" referred to in the resulting statute specifies that it is "a way, owned and maintained by the State, a county or a municipality." So under the new statute, Real Estate Disclosures must include information any time the access to the property is not maintained by the public.
Real Estate Disclosures
Title 33, section 173 Required Disclosures
Unless the transaction is exempt under section 172, the seller of residential real property shall provide to the purchaser a property disclosure statement containing the following information: [PL 1999, c. 476, §1 (NEW).]
Subsection 6. Access to the property. Information describing the means of accessing the property by:
A. A public way, as defined in Title 29-A, section 101, subsection 59; and [PL 2017, c. 181, §3 (NEW).]
B. Any means other than a public way, in which case the seller shall disclose information about who is responsible for maintenance of the means of access, including any responsible road association, if known by the seller. [PL 2017, c. 181, §3 (NEW).]
At the same time section 173 was being amended by the Judiciary Committee, the State and Local Government Committee was working on trying to solve some of the problems with discontinued roads. It was brought to their attention that while the Judiciary Committee was working on a bill regarding real estate disclosures for residential properties, that didn't solve the problem for those who purchase undeveloped land with the intent to build on it. They responded by putting in a bill of their own to address "non-residential properties." As originally passed in 2017, the wording was not consistent with section 173. This caused a good deal of confusion, and a great uproar from the commercial real estate industry. The following Legislative session, they presented a bill to repeal the new non-residential property disclosure. Fortunately, the House Chair of the State and Local Government Committee presented an alternative bill which would keep the new disclosure in place but make the language consistent with the Residential disclosure. It was this bill that passed, giving us Title 33, sections 191 - 193.
Section 191 defines "non-residential property" as follows:
"Nonresidential real property" means real estate that is not residential real property as defined in section 171, subsection 6.
Section 192 lists certain types of transfers that are exempt - court orders, inheritances, and the like.
Section 193 was amended to repeal paragraphs 1 and 2,and now states:
§193. Disclosures
Unless the transaction is exempt under section 192, the seller of nonresidential real property shall provide to the purchaser a property disclosure statement containing the following: [PL 2017, c. 345, §4 (NEW).]
1. Roads on or abutting property.
[PL 2019, c. 142, §1 (REPEALED).]
2. Road maintenance.
[PL 2019, c. 142, §1 (REPEALED).]
3. Access to the property. Information describing the means of accessing the property by:
A. A public way, as defined in Title 29‑A, section 101, subsection 59; and [PL 2019, c. 142, §2 (NEW).]
B. Any means other than a public way, in which case the seller shall disclose information about who is responsible for maintenance of the means of access, including any responsible road association, if known by the seller. [PL 2019, c. 142, §2 (NEW).]
[PL 2019, c. 142, §2 (NEW).]
SECTION HISTORY
PL 2017, c. 345, §4 (NEW). PL 2019, c. 142, §§1, 2 (AMD).
So between section 173 and section 193 of Title 33, ALL properties are now covered, at least if they go through a real estate agent. Private sales may still slip through the cracks.
SNOWMOBILE TRAILS
Another situation that can become problematic on abandoned and discontinued roads is when a road that is needed for residential access is also used as a snowmobile trail. This can cause hazards, as when a speeding snowmobile meets a motor vehicle on a blind curve, or when packed snow on a trail makes slippery driving conditions for motor vehicles. But there may be some recourse in parts of the snowmobile laws.
Title 12 §13106-A. Operation of snowmobile.
Paragraph 4 says:
"4. Unlawfully operating snowmobile on plowed road. A person may not operate a snowmobile upon any plowed private road, or public road plowed privately without public compensation, after having been forbidden to do so by the owner thereof, the owner's agent or a municipal official, either personally or by appropriate notices posted conspicuously on that road."
Many of our abandoned and discontinued roads would qualify as public ways plowed privately without public compensation.
Paragraph 19 says:
"19. Operating too close to certain buildings. A person may not operate a snowmobile within 200 feet of a dwelling, hospital, nursing home, convalescent home or church."
So if the trail goes right past your house, that may give you grounds for complaint. They may argue that they can designate the road as a snowmobile trail under paragraph 5G. But if you read it closely, there are only limited situations where that can apply.
Paragraph 5G says:
"G. Notwithstanding paragraphs A to F, a snowmobile may be operated on the extreme right of a public way within the built-up portion of a municipality or unorganized or unincorporated township if the appropriate governmental unit has designated the public way as a snowmobile-access route for the purpose of allowing snowmobiles access to places of business. A public way designated by an appropriate governmental unit as a snowmobile-access route must be posted conspicuously at regular intervals by that governmental unit with highly visible signs designating the snowmobile-access route. Before designating a public way as a snowmobile-access route, the appropriate governmental unit shall make appropriate determinations that snowmobile travel on the extreme right of the public way may be conducted safely and will not interfere with vehicular traffic on the public way. For purposes of this paragraph, "appropriate governmental unit" means the Department of Transportation, county commissioners or municipal officers within their respective jurisdictions. The jurisdiction of each appropriate governmental unit over public ways pursuant to this paragraph is the same as its jurisdiction over the passage of vehicles on public ways pursuant to Title 29-A, section 2395. Municipal or county law enforcement officials having jurisdiction have primary enforcement authority over any route established under this paragraph."
How often does an abandoned or discontinued road classify as being "within the built-up portion" of town? Does that route allow snowmobiles access to places of business? (If so, that will make your fight more difficult.) Is the trail posted conspicuously at regular intervals? Is the road wide enough to allow snowmobiles to travel on the extreme right, or will they have to travel down the middle of a one lane road? Can the snowmobiles be operated safely on the road and without interfering with vehicular traffic?
The other snag is that the abandonment statute has a clause allowing abandoned roads to be made into recreational trails. But again, you have to read the law carefully. 23 MRSA section 3028 says that the status of abandonment "is at all times subject to an affirmative vote of the legislative body of the municipality within which the way lies making that way an easement for recreational use." Notice that the legislative body has to vote on it - it can't just be designated by the Selectmen. Also, MMA (Maine Municipal Association) has strongly urged towns NOT to use this provision, due to constitutional concerns. Making the access to a person's home into a snowmobile trail damages their ability to keep it plowed as access to their home. Besides, operating motor vehicles on a snowmobile trail is prohibited by 12 MRSA section 13107, so the homeowner would be unable to drive to their home in winter. This qualifies as property access being "taken" or damaged, as in Jordan v Canton.
Here is what it says in the MMA Municipal Roads Manual:
"There is a curious provision in the statutory abandonment provisions that provides that an abandoned road “is at all times subject to an affirmative vote of the legislative body of the municipality...making that way an easement for recreational use.” This language was added in the 1975-76 overhaul of the law, but its intent is unclear. MMA Legal Services staff believes that may raise constitutional issues. For example, if a road was abandoned in 1931 (thus reverting to private property without a public easement) and is currently a potato farm, is it an unconstitutional “taking” of property if the municipality now votes to allow a recreational easement across the farm, without payment of compensation to the landowner? The question has never been addressed in court, so in view of these issues we recommend that the municipality consult an attorney before creating a recreational easement under this law."
I don't entirely agree with MMA's reasoning on this one, as the statute says this only applies to "A way that has been abandoned under this section," and a road couldn't be abandoned in 1931 under a statute that wasn't in existence until 1976. But the fact remains that it's problematic to make a snowmobile trail out of a road where a public easement is needed to provide vehicular access.
Title 12 section 131206-A also places restrictions on how snowmobiles may be operated.
Snowmobilers using the trail have an obligation to use it in a safe manner:
"7. Failing to yield right-of-way while operating snowmobile. A person shall yield the right-of-way to all vehicular traffic while operating a snowmobile on a public way or a private way maintained for travel.
A. A person who violates this subsection commits a civil violation for which a fine of not less than $100 nor more than $500 may be adjudged. [PL 2003, c. 655, Pt. B, §394 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]
B. A person who violates this subsection after having been adjudicated as having committed 3 or more civil violations under this Part within the previous 5-year period commits a Class E crime."
"9. Reckless operation of snowmobile. A person may not operate a snowmobile in such a way as to recklessly create a substantial risk of serious bodily injury to another person. Violation of this subsection is a Class D crime.
[PL 2003, c. 655, Pt. B, §394 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]
10. Operating snowmobile to endanger. A person may not operate a snowmobile so as to endanger any person or property by:
A. Operating the snowmobile except at a reasonable and prudent speed for the existing conditions, including when approaching and crossing an intersection or railway grade crossing, when approaching and taking a curve, when approaching a hill crest, when traveling upon any narrow or winding trail and when a special hazard exists with respect to pedestrians, skiers or other traffic by reason of weather or trail conditions; or [PL 2003, c. 655, Pt. B, §394 (NEW); PL 2003, c. 655, Pt. B, §422 (AFF).]
B. Operating the snowmobile in a manner that fails to control its speed at all times as necessary to avoid colliding with any person, vehicle, snowmobile or other object. [PL 2019, c. 452, §12 (AMD).]
A person who violates this subsection commits a Class E crime.
[PL 2019, c. 452, §12 (AMD).]
11. Operating snowmobile at greater than reasonable and prudent speed. A person may not operate a snowmobile except at a reasonable and prudent speed for the existing conditions.
A person who violates this subsection commits a Class E crime."
So if snowmobiles are a problem, you may be able to get some help under these sections of the snowmobile statutes.
OPERATION OF ATV'S
There is a parallel statute to the Operation of Snowmobiles that governs the operation of ATV's. It comes under Title 12, §13157-A. Operation of ATVs. While it's not quite as restrictive as the snowmobile regulations, it does prohibit operation within 200 feet of a dwelling, and it does include similar safety precautions to the snowmobile law. You can read the entire law here:
LIMITED LANDOWNER LIABILITY
There is a law that provides limited liability for people using your land for recreational or harvesting activities. The protection includes "private ways" and roads. Here is what it covers:
Title 14 section 159-A
Limited liability for recreational or harvesting activities
1. Definitions. As used in this section, unless the context indicates otherwise, the following terms have the following meanings.
A. "Premises" means improved and unimproved lands, private ways, roads, any buildings or structures on those lands and waters standing on, flowing through or adjacent to those lands. "Premises" includes railroad property, railroad rights-of-way and utility corridors to which public access is permitted. [PL 2005, c. 375, §1 (AMD).]
B. "Recreational or harvesting activities" means recreational activities conducted out-of-doors, including, but not limited to, hunting, fishing, trapping, camping, environmental education and research, hiking, rock climbing, ice climbing, bouldering, rappelling, recreational caving, sight-seeing, operating snow-traveling and all-terrain vehicles, skiing, hang-gliding, noncommercial aviation activities, dog sledding, equine activities, boating, sailing, canoeing, rafting, biking, picnicking, swimming or activities involving the harvesting or gathering of forest, field or marine products. It includes entry of, volunteer maintenance and improvement of, use of and passage over premises in order to pursue these activities. "Recreational or harvesting activities" does not include commercial agricultural or timber harvesting. [PL 2015, c. 20, §1 (AMD).]
C. "Occupant" includes, but is not limited to, an individual, corporation, partnership, association or other legal entity that constructs or maintains trails or other improvements for public recreational use. [PL 2003, c. 509, §1 (NEW).]
[PL 2015, c. 20, §1 (AMD).]
2. Limited duty. An owner, lessee, manager, holder of an easement or occupant of premises does not have a duty of care to keep the premises safe for entry or use by others for recreational or harvesting activities or to give warning of any hazardous condition, use, structure or activity on these premises to persons entering for those purposes. This subsection applies regardless of whether the owner, lessee, manager, holder of an easement or occupant has given permission to another to pursue recreational or harvesting activities on the premises.
[PL 1995, c. 566, §1 (AMD).]
3. Permissive use. An owner, lessee, manager, holder of an easement or occupant who gives permission to another to pursue recreational or harvesting activities on the premises does not thereby:
A. Extend any assurance that the premises are safe for those purposes; [PL 1979, c. 253, §2 (NEW).]
B. Make the person to whom permission is granted an invitee or licensee to whom a duty of care is owed; or [PL 1979, c. 253, §2 (NEW).]
C. Assume responsibility or incur liability for any injury to person or property caused by any act of persons to whom the permission is granted even if that injury occurs on property of another person. [PL 2007, c. 260, §1 (AMD).]
[PL 2007, c. 260, §1 (AMD).]
4. Limitations on section. This section does not limit the liability that would otherwise exist:
A. For a willful or malicious failure to guard or to warn against a dangerous condition, use, structure or activity; [PL 1979, c. 253, §2 (NEW).]
B. For an injury suffered in any case where permission to pursue any recreational or harvesting activities was granted for a consideration other than the consideration, if any, paid to the following:
(1) The landowner or the landowner's agent by the State; or
(2) The landowner or the landowner's agent for use of the premises on which the injury was suffered, as long as the premises are not used primarily for commercial recreational purposes and as long as the user has not been granted the exclusive right to make use of the premises for recreational activities; or [PL 1995, c. 566, §1 (AMD).]
C. For an injury caused, by acts of persons to whom permission to pursue any recreational or harvesting activities was granted, to other persons to whom the person granting permission, or the owner, lessee, manager, holder of an easement or occupant of the premises, owed a duty to keep the premises safe or to warn of danger. [PL 1995, c. 566, §1 (AMD).]
[PL 1995, c. 566, §1 (AMD).]
5. No duty created. Nothing in this section creates a duty of care or ground of liability for injury to a person or property.
[PL 1993, c. 622, §1 (AMD).]
6. Costs and fees. The court shall award any direct legal costs, including reasonable attorneys' fees, to an owner, lessee, manager, holder of an easement or occupant who is found not to be liable for injury to a person or property pursuant to this section.
[PL 1995, c. 566, §1 (AMD).]
SECTION HISTORY
PL 1979, c. 253, §2 (NEW). PL 1979, c. 514, §1 (AMD). PL 1979, c. 663, §75 (AMD). PL 1983, c. 297, §2 (AMD). PL 1985, c. 762, §25 (AMD). PL 1993, c. 622, §1 (AMD). PL 1995, c. 566, §1 (AMD). PL 2001, c. 113, §2 (AMD). PL 2003, c. 509, §1 (AMD). PL 2005, c. 375, §1 (AMD). PL 2007, c. 260, §1 (AMD). PL 2009, c. 156, §1 (AMD). PL 2015, c. 20, §1 (AMD).
PARKING
If you park your vehicle at the side of the road and someone complains, how much unobstructed width of road are you required to leave? There doesn't seem to be any particular requirement for abandoned or discontinued roads that remain public easements. However, there is a law, 29-A section 2068, that applies to "public ways" in general. The pertinent part is paragraph 1A and 1B, which says:
(2) An approaching vehicle has a clear view of the way for 300 feet beyond the parked vehicle, before approaching within 200 feet of it. [PL 1993, c. 683, Pt. A, §2 (NEW); PL 1993, c. 683, Pt. B, §5 (AFF).]
So if only ten feet of unobstructed road are required on a public way (which would include paved town roads and county roads,) it would be hard to argue that any more than that is required on a discontinued road that is a public easement, so long as it isn't practical to park off of the way. You can read the entire statute here: http://legislature.maine.gov/legis/statutes/29-A/title29-Asec2068.html
PARKING
If you park your vehicle at the side of the road and someone complains, how much unobstructed width of road are you required to leave? There doesn't seem to be any particular requirement for abandoned or discontinued roads that remain public easements. However, there is a law, 29-A section 2068, that applies to "public ways" in general. The pertinent part is paragraph 1A and 1B, which says:
§2068. Parking
1. On ways. The following provisions apply to parking on public ways.
A. A person may not park a vehicle, whether attended or unattended, on the traveled portion of a public way outside of a business or residence district when it is practicable to park off of the way. [PL 1993, c. 683, Pt. A, §2 (NEW); PL 1993, c. 683, Pt. B, §5 (AFF).]
B. A person may not park a vehicle on a public way unless:
(1) A clear and unobstructed width of at least 10 feet is left for free passage of other vehicles on the way; and
So if only ten feet of unobstructed road are required on a public way (which would include paved town roads and county roads,) it would be hard to argue that any more than that is required on a discontinued road that is a public easement, so long as it isn't practical to park off of the way. You can read the entire statute here: http://legislature.maine.gov/legis/statutes/29-A/title29-Asec2068.html
ALTERING A WATERCOURSE
If someone alters a culvert or changes the way water flows in a ditch and it damages your access or your property, what remedy do you have? Well, if it was done by the Town or by the Town's Road Commissioner, you may have some recourse.
23 MRSA
§3251. Ditches, drains and culverts; control; damages
The municipal officers of a town may at the expense of the town construct ditches, drains and culverts to carry water away from any highway or road therein, and over or through any lands of persons or corporations, when they deem it necessary for public convenience or for the proper care of such highway or road, provided no such ditch, drain or culvert shall pass under or within 20 feet of any dwelling house without the consent of the owner thereof. Such ditches, drains and culverts may be constructed under such highways or roads. Such ditches, drains or culverts shall be under the control of said municipal officers and interference therewith may be punishable by a fine of not more than $500 or by imprisonment for not more than 3 months, or by both. If such town does not maintain and keep in repair such ditches, drains and culverts, the owner or occupant of the lands through or over which they pass may have his action against the town for damages thereby sustained.
Before land is so taken, notice shall be given and damages assessed and paid therefor as is provided for the location of town ways.
23 MRSA §3255. Watercourses not to injure property; remedy
No road commissioner, without written permission from the municipal officers, shall cause a watercourse to be so constructed by the side of a way as to incommode any person's house or other building or to obstruct anyone in the prosecution of his business. Any person so aggrieved may complain to the municipal officers, who shall view the watercourse and may cause it to be altered as they direct.
ROAD WIDTH, TREES IN RIGHT OF WAY
23 MRSA §2103. Lost or unrecorded boundaries
When a highway survey has not been properly recorded or preserved or the termination and boundaries cannot be ascertained, the board of selectmen or municipal officers of any municipality may use and control for highway purposes 1 1/2 rods on each side of the center of the traveled portion of such way. [PL 2015, c. 494, Pt. A, §27 (AMD).]
When any real estate is damaged by the use and control for highway purposes of such land outside the existing improved portion and within the limits of 1 1/2 rods on each side of the center of the traveled portion, they shall award damages to the owner as provided in section 3029. [PL 2015, c. 494, Pt. A, §27 (AMD).]
SECTION HISTORY
PL 1971, c. 288 (NEW). PL 2015, c. 494, Pt. A, §27 (AMD).
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