Mutual driveway maintenance agreement case law

Author: Attorney Eric S. Johnson

Private roads and shared driveways can be found throughout Wisconsin. Ideally, there is a written document that precisely describes the location of the road or driveway, who has the right to use it, a description the permitted uses, and who is responsible for repairs and maintenance. Often, however, there is no written document (as in the case prescriptive or implied easements) or the document is silent on the issue of repairs and maintenance.

Prior to December 5, 2021, a series of judicial decisions described the respective rights of the parties in the absence of a written agreement. In general:

• The owner of the land being crossed had no obligation to repair the private road or shared driveway.
• The owner with the right to cross land owned by another could elect to maintain and repair the private road or shared driveway.
• The owner with the right to cross land owned by another had the duty to perform maintenance and repairs if doing so was required to prevent damage to the owner of the land being crossed.
• The owner with the right to cross land owned by another could make improvements to the private road or shared driveway, so long as doing so did not increase the burden on the land being crossed.

The Wisconsin Legislature codified and updated these rights with the passage of Wisconsin Statute Section 710.20. It became effective on December 5, 2021. In summary:

• If there is a written agreement between the landowners, the agreement prevails over the terms of the Statute.
• If there is no written agreement, all users of the road or private driveway, including the owner of the land being crossed, must contribute “an equitable share based on the amount and intensity of each beneficial user’s actual use in proportion to the amount and intensity of all beneficial users’ actual use.”
• Maintenance and repairs that users are required to contribute toward must be reasonable and necessary.
• Costs are more likely to be reasonable and necessary if:
  1. The other owners had notice and an opportunity to participate in the decision whether and how to maintain and repair the private road or shared driveway.
  2. The costs incurred were for maintenance and repairs, rather than improvements.
  3. The quality and cost of the work and materials were reasonable.
  4. The value of each users’ non-monetary contributions to maintenance and repairs is given due weight. For example, a user that performs grading or snow removal services should probably not be required to pay the same amount of cash as users who do not provide any services.
• The Statute does not apply to railroads, utility providers, the State of Wisconsin or its municipalities.

The creation of default rules in the absence of a written agreement is a great advancement to ensuring the continued safe and equitable use of private roads and shared driveways. Nonetheless, a carefully drafted, written agreement remains the best option. The Statute does not provide incentives to encourage compliance (like deadlines for payment and interest for late payments) or reduce the cost of enforcement (such as requiring the unsuccessful party in litigation to pay the attorney’s fees of the successful party). Furthermore, a written agreement can be tailored to your unique situation.

Before creating or signing an easement or other agreement regarding a private road or shared driveway, please consult with a real estate attorney.

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