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What rights do the public have to private roads

I live in a small closed neighborhood, where all the roads are private. We do not have a gatehouse. Recently, an very unkempt person with obvious psychiatric problems from outside our neighborhood has been walking our streets with her very unkept dog. The police have told me I cannot legally keep her from entering our neighborhood, even though all our roads are private.
In another instance, school choice parents inundate our entryway every morning, with as many as 15 cars at a time parked clogging up our roads, keeping people from leaving to get to work etc.
I am annoyed that it seems as though as property owners in a private neighborhood we seem to have no rights to keep people out. Is there anything I can do?

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While I can appreciate your frustration, the designation of a way as “private” should not be viewed as bestowing too broad a range of special rights and protections for the owners of the abutting properties along the private way.

The principle impact of a way being designated as private relates to who bears responsibility for maintenance of the way (usually the abutting owners), the various approvals required from the city/town for development of the way, and issues regarding utilities. The public does have a right to travel on private ways (drivers, bike riders, and pedestrians), and owners cannot prevent the public from lawful use of the way.

It is possible for the owners to establish parking rules, but since it is a private way, police have very limited jurisdiction as to enforcement. If members of the public are acting contrary to law, then they would be liable just as they would be for the same behaviors on public ways, but private way owners cannot independently restrict their lawful behavior, and dog-walking in and of itself would have to be considered as a lawful act. One’s assessment of the type of person walking through the neighborhood does not give rise to any preventative actions by private way abutters.

Cities/towns typically have by-laws regarding the private ways within that locale, but they almost always govern matters such as plowing, trash removal, and the like.

Have you spoken with the local police and/or the nearby school officials to see if they cannot come up with some reasonable alternative to the traffic mess? Since that could arguably be viewed as a public safety issue (if the congestion would prevent emergency vehicles from accessing the private way), local officials may have an interest in working out some solution. Your city/town may have some kind of transportation advisory board which might be empowered to examine the area and propose solutions if the conversations with police and/or school officials don’t resolve the problems.

WARNING!! The response to the question is completely wrong.
Private ways are private. No question about it.
The abutting owners can restrict public access.
That is why easements are granted to all property owners within
the subdivision to pass and repass over the roads.
Unless an individual has been granted an easement, they
do not have any rights within the road.

Planning board acceptance of a road only means that the road
has been constructed to the planning boards standards.
No acceptance as a public way is implied nor is it possible
for the planning board to take such action. Only by Town
Meeting can a municipality accept a road as public and then only
when a the owners of such road request it.

Submitted Thu, 08/31/2017 - 15:01

You are correct that planning board acceptance of a road means that it has been constructed to their standards, which is why many developers choose to make "private ways." It also means the town accepts responsibility for upkeep and maintenance. However, the original poster was correct. "Private" ways are not the same as closed to the public. A private driveway is closed to the public but "private ways" are still open to be travelled on by the public. Easements protect the homeowners from having the private way changed or moved, they don't restrict the rights of others to use it. An easement can only be granted to someone who has property nearby, not to the general public.

Atty. David Owens
Grolman LLP

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