Keeping roads private

I am not a lawyer, but...

1) Private roads are typically legally defined as such in the plots/plats for the area, and in wording set up by the state when the roads are developed. I would assume said legal description would rule over whether your roads were privately owned, maintained and restricted, or only privately owned and maintained (we have private roads, but the state retains "public access for legitimate business to all citizens").

2) the whole "one day with a pass" doesn't really pass my fish test. It kind of smells like some story someone invented, not really "law".

Kevin,

Your situation is somewhat similar to my own association. We have about 300 miles of dirt roads and there has been more than one debate about whether the roads are private or public. This is complicated by the fact that there are few statutes on the subject and one must rely on common law.

I am making an assumption here that your roads are in the form of easements over private property as opposed to having a deeded right-of-way for your roads.

The debate should start with an examination of any plats that were recorded for the development. Plats typically indicate where easements are located and whether the roads are public or private. The problem arises when the words "public" or "private" are not used. Arizona court decisions hold that the term 'non-exclusive ingress and egress" is same as saying it is a public road. This also implies that if the dedication is for "exclusive" ingress and egress that it is a private road.

If there are no plats, then you need to start looking at individual deeds to see what easements are granted and to whom they are granted. To have legal access to your property you would need to find an easement granting you (and likely others) use of the road for each property that you must pass over. Without an easement either on a plat or in a deed, you run the risk of a cranky neighbor fencing off the road.

If no easements are granted in either recorded plats or recorded deeds then you definitely should seek out legal guidance from an attorney.

Easements can be complicated by the existence of any roads prior to the development of the property. We have a number of roads in our development that were there long before the development and they do not always show up on our plats. I know of one parcel where the owner attempted to block access to the existing road and force traffic to follow the easement set out by the developer. All of his fences quickly disappeared.

Historical use is known as a prescriptive easement. Essentially it means that a person who has used the road in the past may continue to use it in the future. It sounds like your association is attempting to prevent someone from claiming that he has a prescriptive easement over your roads. Whether your one-day-a-year closure will be sufficient to bar a claim for a prescriptive easement is something that would most likely need to be resolved in court.

The original attorney for our association was asked for his opinion about whether our roads were private. Instead of doing any research into the subject he gave us his seat-of-the-pants opinion that the roads must be private because they are not owned by a government agency. Had he bothered to actually read the case law on the subject he would have found that that argument had already been rejected by the courts. Whether a road is private or public is not dependent upon it being owned by a public agency.

Kevin,

I believe that private roads are based on County Codes vs. State Statutes. Therefore, you might try searching the codes for your specific county.

Tim

I recall hearing similar stories about places such as Rockefeller Center locking the doors for one day out of the year to thwart any prescriptive easement claims. I find it hard to believe that exercising dominion over the property for 24 hours out of the year is sufficient to ward off any claims.