Filling the Gaps: Maintenance and Repair of Private Roads and Shared Driveways

Private Drive

“We all just share the road; there’s never been a problem; we don’t need a formal agreement.”

As real estate attorneys in Walworth County, we can’t tell you how many times our clients have used this explanation for shared use of private roads and driveways. This may be true when the road is new, but what happens when its in needs a repair or worse – to be replaced entirely? As attorneys, we prefer written agreements between parties that share private roads and driveways, but when these agreements aren’t in place at the creation of the road, its often difficult to obtain unanimous approval from all the residents that share the road.

Effective December 3, 2021, the Wisconsin Legislature attempted to solve this problem by deciding how the roads and driveways shall be maintained when it approved Assembly Bill 208 and Senate Bill 283 – enacted as Wis. Stats. § 710.20. The main driver of this legislation was Fannie May and Freddie Mac’s refusal to provide lending for residential homes with access via a private road with no maintenance agreement. This statutory provision fills the gap, allowing the lenders to provide financing on such properties.

The law now requires users of a private road or shared driveway to contribute an equitable amount to the maintenance of the private road or shared driveway based on the amount and intensity of each user’s actual use in proportion to the amount and intensity of all other users’ actual use. It does not cover damage caused by a user’s damage to the road beyond wear and tear, such as damage caused by large trucks during construction.

The default provisions of the statute serve as a fallback provision, but they are ripe for litigation in the future. The statute provides factors to be considered when determining a beneficial user’s equitable share, but a factor test lends itself to interpretation, nuance, and ultimately argument. It’s much better to have a private road maintenance agreement in place between the parties with exact percentages related to responsibility, including triggering events and control of contracting services.

Clair Law handles land use and development matters, as well as real estate transactional matters, and we would be happy to assist any developers or homeowners before they need to rely on the new statutory default provisions.