FHA: Vehicular Access Via Non-public Road W/out Maintenance Agreement

[Zoe]

It's pointing to somebody subdivided that land and built the road and either built and sold the houses or they sold the lots. The owners that are benefiting from that easement will likely have to maintain it unless the County maintains it for whatever reason.

 

[jay trotta]

Perhaps you may wish to use the following;

Community-Owned or Privately Maintained Streets​

If the property is located on a community-owned or privately-owned and maintained street, an adequate, legally enforceable agreement or covenant for maintenance of the street is required. The agreement or covenant should include the following provisions and be recorded in the land records of the appropriate jurisdiction:

• responsibility for payment of repairs, including each party’s representative share;
• default remedies in the event a party to the agreement or covenant fails to comply with their obligations; and
• the effective term of the agreement or covenant, which in most cases should be perpetual and binding on any future owners.

Note: If the property is located within a state that has statutory provisions that define the responsibilities of property owners for the maintenance and repair of a private street, no separate agreement or covenant is required.
If the property is not located in a state that imposes statutory requirements for maintenance, and either there is no agreement or covenant for maintenance of the street, or an agreement or covenant exists but does not meet the requirements listed above, the lender may still deliver the loan. However, the lender is required to indemnify Fannie Mae (as described in A2-1-03, Indemnification for Losses) against all losses incurred by Fannie Mae as a result of the physical condition of the street or in order to establish and/or retain access to the street.

 

[Zoe]

Perhaps you may wish to use the following;

Community-Owned or Privately Maintained Streets​

If the property is located on a community-owned or privately-owned and maintained street, an adequate, legally enforceable agreement or covenant for maintenance of the street is required. The agreement or covenant should include the following provisions and be recorded in the land records of the appropriate jurisdiction:

• responsibility for payment of repairs, including each party’s representative share;
• default remedies in the event a party to the agreement or covenant fails to comply with their obligations; and
• the effective term of the agreement or covenant, which in most cases should be perpetual and binding on any future owners.

Note: If the property is located within a state that has statutory provisions that define the responsibilities of property owners for the maintenance and repair of a private street, no separate agreement or covenant is required.
If the property is not located in a state that imposes statutory requirements for maintenance, and either there is no agreement or covenant for maintenance of the street, or an agreement or covenant exists but does not meet the requirements listed above, the lender may still deliver the loan. However, the lender is required to indemnify Fannie Mae (as described in A2-1-03, Indemnification for Losses) against all losses incurred by Fannie Mae as a result of the physical condition of the street or in order to establish and/or retain access to the street.

Yeah, but we know this is an easement now. Usually the property that benefits from the easement is required to maintain it (not always the case). I am not sure the County built the road on the subject the OP is working on.

Take for example, the County has easement across my property for electricity. The utility company maintains that electricity.

 

[Zoe]

The title insurance company would know. That lawyer is a good source for this appraiser. Talk to county officials and FHA. Clean it up. Get paid.

 

[Zoe]

FHA is your client. Do what they tell you to do. Make sure it is documented well. Get paid.

 

[Tom D]

would the road now be considered a driveway easement. can get to the main road. you explain it as best as possible, then throw it to the underwriter/lender to decide what they want to do about it. as long as you document that this is being done & has been done for a long time, you are safe. when we can't determine, we can say it appears to have been going on for 20 years. so no one ever got a loan on their property sharing this non road. why are you calling it a road now, when it's functional utility is being a driveway.

 

[Zoe]

would the road now be considered a driveway easement. can get to the main road. you explain it as best as possible, then throw it to the underwriter/lender to decide what they want to do about it. as long as you document that this is being done & has been done for a long time, you are safe. when we can't determine, we can say it appears to have been going on for 20 years. so no one ever got a loan on their property sharing this non road. why are you calling it a road now, when it's functional utility is being a driveway.

Yeah, I am trying to protect the lender and the title insurance company and the County and my client. Bit overwhelming. This one really confuses me. How does homeowner feel about the situation?

 

[Zoe]

It still boils down to property rights and maintenance. Talk to FHA. For God's sake, talk to your client. FHA has way more money than you. Your client. FHA is your client.

 

[Zoe]

FHA is your client . Make no question about it. FHA is your client.

They are not merely a intended use or user. FHA is your client.

You can share anything and everything with FHA. VALUE or whatever. FHA is your client.

Be safe with your client.

 

[Timothy Hogan]

4000.1.II.A.3.a.ii.(C) Access to Property



(C) Access to Property

The Mortgagee must confirm that the Property is provided with a safe pedestrian access and Adequate Vehicular Access from a public or private street. Streets must either be dedicated to public use and maintenance, or retained as private streets protected by permanent recorded Easements.

Private streets, including shared driveways, must be protected by permanent recorded Easements, ownership interest, or be owned and maintained by an HOA. Shared driveways do not require a joint maintenance agreement.



4000.1.II.D.3.C.iv.(A) Access to Property

iv. Site Conditions

(A) Access to Property

(1) Definition

Adequate Vehicular Access to Property refers to an all-weather road surface over which emergency and typical passenger vehicles can pass at all times.

(2) Required Analysis and Reporting

The Appraiser must notify the Mortgagee of the deficiency of MPR or MPS if the Property does not have safe pedestrian access and Adequate Vehicular Access from a public street or private street that is protected by a permanent recorded Easement, ownership interest, or is owned and maintained by an HOA. Shared driveways that are not part of an HOA must also meet these requirements.



The Appraiser must note whether there is safe pedestrian access and Adequate Vehicular Access to the site and analyze any effect on value or marketability.



The Appraiser must report evidence of a permanent Easement.



The Appraiser must ask if a maintenance agreement exists and comment on the condition of the private road or lane.