Maintenance of private road hits dead end for frustrated Boutiliers Point homeowners

When David Pilmer and his wife built their home in 2015 on Toni Avenue in Boutiliers Point, N.S., they had no concerns about living along the private stretch of gravel road.

"Any potential concerns we had were allayed because we had a friend who lived on the road and there had been no issues," said Pilmer.

That was until about five years ago when residents of the Halifax-area community say maintenance unexpectedly ceased and the subdivision's developer went AWOL, leaving homeowners to pick up the slack — everything from snow clearing to filling potholes.

The impasse is shedding light on the lack of oversight for private road maintenance in Nova Scotia.

Residents sometimes have homeowners associations that govern upkeep. In other cases, the provincial government provides service. There are also communities with informal arrangements for maintenance and snow clearing.

Lack of clarity on maintenance and ownership

"It's our understanding that the province used to provide some winter clearing on the private section [of the subdivision] but stopped around 2018-2019," said Laura Wright a spokesperson for Halifax Regional Municipality in a statement.

However, a spokesperson for Nova Scotia Public Works said there is no record of the roads receiving services.

The Islandview Ridge Property Owners Association is listed as owner of the private portions of Toni Avenue, and nearby Amelinda Crescent, in property deeds. George Elhajj is named as president of the society, which had its registration revoked in June 2023, according to the Nova Scotia Joint Stock Registry.

Elhajj could not be reached for comment online or in person at a residence registered to the society, and a letter sent to the address was also declined.

Pilmer said none of the residents were members of the association.

"One of the problems was an association was formed by the developer and people associated with the developer," said Pilmer. "But that association had become inactive. So whatever work they had to do to keep it active at the registry of joint stocks that fell apart."

Liability concerns 

Public Works said the road's owner or residents are responsible for maintenance.

Pilmer is concerned about liability issues if he maintains a road on land he doesn't own.

But Derek Land, a lawyer at Blackburn Law in Bedford, N.S., said that depends on the situation. Regardless, he said homeowners should inform their insurance company if they live on a private road.

"It is generally assumed that if you access a private road that doesn't have any prescribed maintenance that it is at your own risk," Land said. "It is relatively uncommon, as far as I understand, for owners of private roads to bear any liability for damage done to cars that are travelling over them."

It's important to understand the arrangement before purchasing a home, Land said. An oversight body could hinder informal arrangements for maintenance, he said.

"There are as many happy, harmonious functional situations as there are ones that can't be described in that way," Land said. "And so to impose the regulatory regime on top of that would create an adverse situation for as many people as it would help."

WATCH | An impasse in a rural N.S. community sheds light on private road oversight

Land said residents with issues on private roads should reach out to their MLA or municipal representative.

Halifax Regional Municipality no longer permits private roads for new subdivisions. The municipality is also preparing a report to address issues on private roads, including garbage collection and maintenance.

Halifax regional council will also consider collecting a maintenance fee if residents on private roads have a homeowners association and more than two-thirds of residents sign a petition requesting the area rate. If approved, funds are collected by the municipality and forwarded to the association, which would make maintenance arrangements.

However, Sarah Roberts, who lives also lives in Boutiliers Point, thought the municipality was expected to take over the private road in front of her home. She said the ownership of the road feels like "hot potato"  being passed around.

Property deeds said that maintenance of the private road by the owner "shall terminate at such time the road becomes a public road under the authority and control of HRM."

Roberts said she thought that had already happened, until maintenance stopped.

But Wright said the municipality "would not have entered into any agreements with the developer to accept a private road as a public street at the time of subdivision approval."

'A dead end'

Roberts said she has been in contact with Elhajj's lawyer, but it has not resulted in progress. She said maintenance concerns were renewed in February when a school bus went off the road in the subdivision.

The lawyer she referenced said he is no longer practising and declined to comment.

"We reached a dead end and we really just needed our road plowed so that we could drive to work and have the school buses come by and have the garbage trucks come and collect," she said.

A homeowners association would make the distribution of work on the road more fair, she said, but attempts to establish one haven't had enough support from residents.

"I would like some better oversight, given the experience we've had," Roberts said.

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