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Condo | HOA Lawyers

Road Maintenance – Who Pays? (Duties under Association Documents and Case Law)


A dispute arose between four condominium associations within a master association as to obligations to pay for the maintenance, repair and upkeep of a roadway easement.  The road connected the four condos and other properties.  The master deeds for each association were recorded in the 1970s.  In 2013, Plaintiff, Bayberry Group, Inc. (“Bayberry”) sought an agreement to share the costs of the road.  As a result, a Common Area Maintenance Agreement (“CAM Agreement”) was created.  The CAM Agreement covered the road and the “lawns and entirety of any … landscaping in the roadway easement.”  A majority of the associations in the master association executed the CAM Agreement, but the four defendant associations did not.  The defendants also refused to pay their share of the fees under the CAM Agreement.  Bayberry filed suit alleging the road easement is a general common element of each of the associations.  Defendants answered denying any road easement as a common element.

Trial Court

The trial court found that the road easement is not a common element of defendant associations under either the master deeds or the condominium documents.  Accordingly, the court held that the associations had no contractual obligation for the easement expenses, and Bayberry was not entitled to any past damages.  The court also found that Bayberry was entitled to future expenses for maintenance of the road easement under common law “in proportions that closely approximate the useage of the respective parties,” but was not obligated for the easement areas outside of the paved roadway.  Bayberry appealed.

Appeals Court
  1. All of the master deeds were recorded in the 1970s and referenced ingress and egress through the road easement;
  2. The master deed did not indicate that the easement was a common element;
  3. The association documents did not describe the road as a common element, and it is not a common element under their respective documents or by operation of the law;
  4. Defendant associations are only required to pay for the repairs “incidental to and part of their ability to safely enter and leave their respective properties;” and
  5. The trial court erred in the manner that it allocated costs and on remand it “must make specific findings of fact concerning use of the easement” and apportion the costs based on that.
  1. Poorly written documents tend to cost associations far more in the long run than the extra cost involved in having the documents written well in the first place;
  2. Trying to have the right to use something for free, in this case the road, without paying your proportionate share of the costs will likely fail, unless the documents are clear and well written that this was the drafter’s intent; and
  3. Going into this case if everyone had sat down and explained to an 8-year old their positions, the 8-year old would have told everyone, in more simple language, that “[t]he maintenance costs of an easement used [the various associations] are to be paid in proportion to each party’s use.”  So why exactly did everyone spend the attorney fees and costs to argue who had to pay for the flowers by the road?

Bayberry Group, Inc. v. Crystal Beach Condominium Association, ___N.W.2d ___ (2020, Mich)


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