The VA has released an update on their long-standing restriction on private roads and shared driveways with circular 26-22-17 on 11/25/2022.

Private roadways are found in two different property locations. The first is in established subdivisions or condominiums where a homeowner (HOA) or condo association exists, and a portion of the required dues are budgeted for road maintenance. The second is in rural America, where a property may be situated on a private road off a public highway.

Before this update, the VA required documentation that the HOA was maintaining the private roads or that a recorded, shared maintenance agreement was in place. Along with these agreements, the VA also required a recorded easement to permit continued access to the property owners.

The maintenance documentation is in their Declaration of Covenants, Conditions, and Restrictions for HOA or Condos. The language addressing the streets is commonly buried in one of the paragraphs that takes a lot of patience to track down. These forms can be incredibly
lengthy, wordy, and difficult to understand. Locating the proper verbiage addressing the requirement can be hard to do.

It is not so straightforward for rural properties, and tracking these agreements can be downright cumbersome. If an agreement exists, it’s usually recorded and provided by the title company or closing attorney assisting in the transaction. Yet, if an agreement does not exist, it can be burdensome and expensive to have one drafted up and then notarized by the homeowners sharing the private road. Sometimes the title company would assist with the process, and sometimes not. I can recall a few VA transactions in my career that we couldn’t close because we were not able to get the agreement before closing. In one case, a few homeowners could not be tracked down because the property wasn’t their primary residence.

As the VA circular explains, most states already have laws governing private road maintenance when an agreement doesn’t exist. They recognize that rule is causing an undue burden on the veteran buyers or homeowners and may compromise their VA financing.

Conclusion

The VA is now removing the restriction of obtaining these maintenance agreements. However, the requirement to provide a recorded easement or right of way for continued access to the property will stay in place.