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HOUSE DOCKET, NO. 673 FILED ON: 1/16/2023
HOUSE . . . . . . . . . . . . . . . No. 2116
The Commonwealth of Massachusetts
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PRESENTED BY:
David T. Vieira
_________________
To the Honorable Senate and House of Representatives of the Commonwealth of Massachusetts in General
Court assembled:
The undersigned legislators and/or citizens respectfully petition for the adoption of the accompanying bill:
An Act relative to the maintenance of private roads, beaches and amenities in municipalities.
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PETITION OF:
NAME:DISTRICT/ADDRESS :DATE ADDED:David T. Vieira3rd Barnstable1/16/2023 1 of 6
HOUSE DOCKET, NO. 673 FILED ON: 1/16/2023
HOUSE . . . . . . . . . . . . . . . No. 2116
By Representative Vieira of Falmouth, a petition (accompanied by bill, House, No. 2116) of
David T. Vieira relative to the maintenance of private roads, beaches and amenities.
Municipalities and Regional Government.
[SIMILAR MATTER FILED IN PREVIOUS SESSION
SEE HOUSE, NO. 2208 OF 2021-2022.]
The Commonwealth of Massachusetts
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In the One Hundred and Ninety-Third General Court
(2023-2024)
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An Act relative to the maintenance of private roads, beaches and amenities in municipalities.
Be it enacted by the Senate and House of Representatives in General Court assembled, and by the authority
of the same, as follows:
1 SECTION 1: Chapter 84 of the General Laws shall be amended in section 12 by deleting
2the words, “private way or bridge” in the first line and replacing them with the words, “private
3way, bridge or other common amenity”.
4 SECTION 2: Chapter 84 of the General Laws shall be amended in section 12 by inserting
5at the beginning of said section the following:
6 For the purposes of sections 12 through 14 of this chapter, the following terms shall have
7the following meanings:
8 “Common amenity” shall mean private parks, buildings, recreational facilities, beaches
9and the like intended for the use by property owners in a private subdivision or area; 2 of 6
10 “Proprietor” as used in this chapter shall mean the “owner” of land abutting a private
11road and who has the right to use the private road to access his property;
12 “Rightful occupant” shall mean any person other than a proprietor with a lawful right to
13use a private road, bridge or other private amenity by easement, grant or implication.
14 “Private Road” shall mean a way, whether paved or unpaved, intended primarily for the
15use of vehicles and shall include any and all appurtenances to such roads or ways, bridges and
16common amenities including but not limited to roadway rights of way, drainage, abutments,
17slopes, ramps and approaches and which are not maintained by a city or town.
18 “Servitude or Equitable servitude” for the purposes of section 12 to 14 of this chapter is
19an obligation of a proprietor or rightful occupant, whether such obligation is actual or implied, to
20participate financially or otherwise in the maintenance of private roads, bridges or other common
21amenities in a private subdivision.
22 SECTION 3: Said chapter 84 shall be further amended by adding after section 12, the
23following new section:-
24 Section 12A: Notwithstanding any general or special law to the contrary, an obligation
25imposed by a recorded document or otherwise for property owners or occupants to be
26responsible for or to contribute financially or otherwise to the maintenance of roads, bridges,
27beaches or other common amenities within a private subdivision shall be deemed to have created
28an equitable servitude and not a condition or restriction.
29 An equitable servitude is created when real property is conveyed intending to create a
30servitude, or if the requirements of a servitude by necessity are met. The creation of a private 3 of 6
31road, bridge, other structure, or common amenities such as parks and beaches requiring
32maintenance within a private development shall be deemed to create a servitude for the
33maintenance of the private road, bridge, structure, or common amenities. Such servitudes and
34servitudes by necessity shall continue as long as the need for maintenance continues or as long as
35the road, bridge, structure or amenity remains private.
36 SECTION 4: Chapter 84 shall be further amended by adding after section 12A, the
37following new section:-
38 Section 12B: a. Notwithstanding any law or special law to the contrary, the obligation of
39any person or entity, whose property abuts any private road or roads and bridges, and who has
40the right to access private roads, bridges, related beaches or other common amenities, or whose
41property does not abut such private roads, bridges, beaches and other common amenities but who
42has the use of such private roads, bridges, beaches, or other common amenities by grant or
43implication, to maintain or contribute to the maintenance of such roads, bridges, beaches or other
44common amenities shall continue as long as the privilege, right to use or benefit continues and as
45long as the road or roads, bridges and common amenities remain private regardless of whether
46any recorded covenants, conditions and restrictions affecting such subdivision, roads, bridges,
47beaches or other common amenities have expired.
48 b. The process for contribution, collection and maintenance of private roads bridges and
49other common amenities shall be as stated in any recorded document, relating thereto
50notwithstanding the fact that any conditions or restrictions imposed by said document have
51expired by the language of the document or by operation of law unless such process is amended
52by majority vote of owners and occupants having such rights and obligations. Votes to amend the 4 of 6
53provisions for collection of funds, increase or decrease in assessments and maintenance of roads,
54bridges, beaches and other common amenities shall be as stated in the recorded document. If
55there is no provision in such document for increasing or decreasing amounts to be paid in such
56document or there was no such document previously recorded, the proprietors and rightful
57occupants may call a meeting pursuant pursuant to the terms of the recorded document as
58properly amended, or if no such document was previously recorded, then pursuant to sections 12,
5913 and 14 of this chapter to determine those issues.
60 c. If no document has been recorded describing the process for determining such
61maintenance and contributions, proprietors and rightful occupants subject to a servitude shall
62have the power to create an association of property owners. Such an association may be created
63by using the provisions of sections 12, 13 and 14 of this chapter. Once an association has been
64created, all owners and rightful occupants subject to the servitude shall automatically become
65association members. The association shall establish and follow a formal process, described
66below, to determine by-laws, maintenance fees and other obligations. No proprietor or rightful
67occupant shall be required to pay any membership fee as a requirement to belonging to the
68association. Maintenance fees as determined by the association shall not be deemed to be
69membership fees.
70 The association shall have a board of directors consisting of three, five, or seven
71members. The directors shall be proprietors subject to a servitude, and shall be elected by
72majority vote of the proprietors and rightful occupants subject to the servitude. The directors
73shall serve a term to be determined by a meeting of proprietors and rightful occupants. The
74directors shall hold a general meeting at least once per year, wherein proprietors and rightful
75occupants belonging to the association may be heard. The directors shall reach decisions on by- 5 of 6
76laws of the association, maintenance, maintenance fees and other powers through a majority vote
77and such determinations shall be approved or disapproved by a majority of proprietors and
78rightful occupants at a meeting called for that purpose. Directors may call additional meetings as
79they deem necessary or at the request of three or more proprietors and rightful occupants. Notice
80of all meetings shall be mailed by first class mail, postage prepaid, or otherwise delivered to all
81reasonably known proprietors and rightful occupants at least fourteen days before the meeting. If
82the directors fail or refuse to call a meeting when required or when petitioned to do so by three or
83more proprietors and rightful occupants, proprietors and rightful occupants may convene such a
84meeting pursuant to section 12 of this chapter. Once an association has been created, any
85meeting of the proprietors and rightful occupants shall be governed by the by-laws and rules
86established by the association. No duly called meeting of the proprietors and rightful occupants
87shall be deemed invalid if reasonable efforts were made to notify all proprietors and rightful
88occupants who were reasonably known at the time the meeting notices were mailed or delivered.
89 An association shall have the power to do anything reasonably necessary to manage the
90roadways, bridges or other common amenities and administer the servitudes. Such powers shall
91include the power to raise funds necessary to carry out the functions of the association, and the
92power to enforce rules and regulations. In addition to seeking court enforcement, the association
93may adopt reasonable rules and procedures to encourage compliance and deter violations,
94including the imposition of fines, penalties, late fees, and the withdrawal of privileges to use
95common recreational and social facilities. The association shall have the power to make
96substantial alterations, improvements, and additions to the common property. Funds may be
97raised by levying assessments against the individually owned property, and by charging fees for
98services or for the use the roads and common amenities by rightful occupants. Such fees must be 6 of 6
99reasonably related to the costs of the operation and maintenance of the roads, bridges and other
100amenities. An association shall have the power to manage, acquire, and improve common
101property. An association shall have the power to sue and be sued. Associations shall have the
102duty to act fairly towards its members and allow all members to participate in decisions. Actions
103to collect maintenance and other fees may be taken in the District Court in the district where the
104property subject to the servitude lies.
105 SECTION 5. This act shall take effect upon its passage.