2021 Wisconsin Act 99

Section 710.20: Maintenance and repair of private roads

In December 2021, the state of Wisconsin passed 2021 Wisconsin Act 99, which lays out the procedure for how costs are to be shared among beneficial users of private roads and driveways. Wis. Stat. Ann. § 710.20

The first provision in the section states that if there is an instrument that created the access easement, or in a deed restriction, covenant, or declaration that sets forth the respective maintenance and repair obligations, that will be controlling among the beneficial users.

The second provision states that if there is no agreement regarding the obligations among the parties, The statutory formula requires each beneficial user to contribute an equitable share based on the amount and intensity of each user's actual use in proportion to the amount and intensity of all beneficial users' actual use. The statute allows beneficial users to decide if the costs are reasonable and necessary by weighing four factors.

(a) Whether notice of, and an opportunity to participate in, the decision to undertake the maintenance and repair was provided to the beneficial users.

(b) Whether the costs were incurred for work that constituted improvements rather than maintenance or repair.

(c) Whether the work was of a reasonable quality and cost.

(d) The value of monetary or in-kind contributions to maintenance and repair made by beneficial users.

If there is no prior agreement on cost-sharing for the private roads, then the last provision is likely to lead to conflict. Disagreements can be had over how a party believes their amount and intensity of use were compared to their fellow beneficial users. Beneficial users can also protest the shared costs based on the four factors the statute allows them to use. This can lead to the danger of litigation over what reasonable costs are for the beneficial users.

The third subsection states that if a beneficial user (or a guest or invitee of a beneficial user) causes damage to a private road or driveway, the beneficial user is solely responsible for the costs of repairing the damage.

The last subsection exempts certain parties from cost-sharing of private roads. The exempt parties are state and local governments, public utilities, and railroads corporations.

Wis. Stat. Ann. § 710.20
By: ATG Underwriting Department | Posted on: Fri, 05/13/2022 - 10:24am