Who controls the roads?

One of the most visible areas in a planned community is its roads and streets. Because of that, homeowners and their homeowner’s associations sometimes exceed their authority over those roads and get themselves in trouble. Usually, as I’ve written before, when a planned community is developed, a plat is filed that shows the lots, common areas and roads in the community. In the plat and sometimes in the declarations, the roads may be shown as “private” or may be “dedicated” to the “public.” A dedication is one half of the process for transferring the roads to the ownership and control of the North Carolina Department of Transportation. In addition to the dedication or the intent to transfer the roads, the DOT must actually accept the transfer. Usually the developer begins this procedure, but the HOA can begin it after it takes over from the developer. The DOT has building requirements for all public roads and before they accept a dedication, the private roads must be brought into compliance with those regulations. In addition, if it is the HOA that is proceeding with the dedication, the planned community act requires at least an 80% vote of the members before common areas such as the private roads are conveyed.

So the roads in a planned community are either public roads maintained by the DOT, or they are private roads, maintained by the developer or the HOA or the homeowners as a whole. Therefore the first question when trying to determine the scope of authority of an HOA over a road in the community is whether or not the road is public or private.

When the road is public, and maintained by the DOT, the HOA has no authority over the road. I have seen pages of rules regarding on-street parking, skateboard ramps, speed limits, and other limitations on roads in the written regulations, by-laws and Declarations of the HOA. However, when the Declarations fight he law, the law wins. Unlike some of the statutes contained in the Planned Community Act or the Condominium Act, the HOA has no authority to establish more restrictive regulations than the law provides over the public roads within their subdivision. The statutes provide that the Department of Transportation of the state of North Carolina has exclusive control over the public roads. 

When the road is private, the HOA does have more control over the roads within the subdivision. The extent of the HOA’s power and authority over the roads is, as usual, governed by its Declarations, By-laws and Rules and Regulations. In addition, the law of easements may come into play as the homeowners in the planned community would have an easement over the roads and would be allowed to reasonably use them based on the plat. Therefore, it is unlikely that an HOA could succeed in removing all access and use of the road from a homeowner. However, speed bumps, signage, parking restrictions, and even gates to keep out any traffic other than homeowners and their guests can be instituted if the Declarations and other community documents allow.

--Bradley A. Coxe is a practicing attorney in Wilmington, NC with Hodges & Coxe PC who specializes in Personal Injury, Medical Malpractice, Homeowner's Associations, Contract and Real Estate disputes and all forms of Civil Litigation.  Please contact him at (910) 772-1678.

Comments

[Ross Henderson]

What if the roads were declared public in a right of way agreement nut on one wants the state to take over. are the roads still public or can we be blocked from free entry?

[Bradley Coxe]

If the road is or becomes a public road, there is a procedure that the DOT can follow to close it, but it would involve public hearings and notice.

[Lindsay]

If a road is dedicated as public on the plat but the state never takes over maintenance, is it considered private? What rights/obligations do an HOA have over such a road, specifically when it comes to the installation of speed bumps?

[Bradley Coxe]

The DOT has to accept the dedication for it to be a public road. One way to accept the dedication is to take over the maintenance, but the more typical way is the DOT makes a determination if the road meets their requirements and then notifies the owner. Call the DOT at 910-346-2040. If you live in a municipality, you should call their office as well. If the road is private, and owned by the HOA, the HOA can install speed bumps or gates or other rules, as long as all the homeowners can continue to use and access the roads.

[kathy]

Is there a difference between the HOA having a road easement and the HOA having the right to put a walking path/bike path inside the road easement in front of private property, with out the owners permission. Doesn't that need a recreational easement?

[Bradley Coxe]

It depends a lot on the facts, but if any easement, is being used for more than what the agreement says or more than its historical use, it may be found to be "overburdened" and any user who is overburdening the easement can be found liable.

[Pat]

About 2 years ago, my daughter discovered the home she and her husband bought 5 years ago was on a private road dedicated to the public. She lives in a residential subdivision that was created in 1987 and did not have an HOA. The subdivision consisted of 6 plats. 3 of the plats identified 3 men who signed the plats acknowledging they were responsible for maintaining the private roads until the roads were brought up to the standards and approved by the North Carolina Transportation Secondary Road System. In addition, per the plat, those three men dedicated the roads and streets to the public. One of the three men died in 2003. Recently a bridge on one of the private roads dedicated to the public washed out and the two men still responsible are refusing to fix the bridge. How should my daughter proceed? Also, does the state have any responsibility to force the two living men responsible for maintaining the roads to bring the roads up to the standards of the North Carolina Transportation Secondary Road System?

[Dan]

Our HOA is considering a change to the speed limit on a section of road within the gated community from 35 mph to 25 mph. The DOT does not venture inside our gates for road maintenance of any type. Can the HOA do this on its own or does DOT have to be involved?

Also, if a few of the intersections are hidden from view by hills or turns, but are marked by signs stating, "Dangerous Intersections", is the HOA opening itself up to liability because it's essentially admitting to a dangerous condition without doing anything about it? My claim is that the HOA should replace the signs with ones stating "Hidden Intersection" with a graphic showing the configuration and a separate sign attached below it stating "Slow Down!

Your thoughts will be greatly appreciated.

Dan

[Bradley Coxe]

Pat,

Its difficult to give you an answer based on that information. Your daughter would have an easement over the roads based on the plat and she and the other neighbors would have the responsibility to maintain it, unless there was something in writing that would keep the responsibility on the owners. That could be the plat or something in her deed. If the DOT hasn't accepted it as a public road, they usually don't have a duty to maintain it. If there is a claim against the developers, your daughter and/or her neighbors would have to bring it.

[Bradley Coxe]

Dan,

If it is a private road, the HOA can change the "speed limit." Although the police may not have a duty to enforce it.

Owners of property have a duty to fix or warn of hidden dangers. I think your suggestion is more appropriate since it gives a clearer warning as to what the danger is and how to avoid it.

[Dan Lambert]

Can on HOA with all private roads issue rules pertaining to golf carts that may be at odds with NC Laws, ie, age, drivers license, safety devices (lights, brake lights, etc)?

[Bradley Coxe]

It would depend on the law and if it is applicable to private property or not.

[Lindsay]

I live in a subdivision that has privately maintained roads with dedicated public access. In otherwords, anyone and everyone can drive on our roads, park wherever, and ignore the speed limit without state or county enforcement and the HOA has to pay for all road repairs. We'd like to install no parking signs with towing enforced along a section of road that has crumbling edges and potholes due to cars parking in the adjacent easements. Is this within our rights as an HOA? Or do we run into trouble because the road is dedicated as public access?

[Bradley Coxe]

Based on that description, you probably have the right to enforce parking on the private roads, but you should contact an attorney with more details who can give you a more definitive opinion.

[Scott]

We have a Association of about 40 lot owners. It was turned over to our association in 95. Then the developer started another association beyond ours (3 Times the lots). He gave them access thru ours with out any maintenance provisions in writing. They recently stopped paying anything on our road (GRAVEL). They have 3 times the homes on it and are wearing out the road. We have tried everything, Court House, Planning dept and the Magistrate. Nobody seems to be able to help. Any ideas???

Toll Road??

[Bradley Coxe]

If your HOA owns the road, the other HOA probably has an easement (meaning they can use the road), but, with an easement, unless there is something else in writing or in your bylaws, comes the responsibility for their share of the maintenance and you may have a legal claim against them. If the developer owns the road, the claim may be against the developer.

[gordon mabe]

We have a 50 foot easement.We are trying to maintain the road by putting new ditches deeper and gravel.The owner that has giving me the easement rights has decided to make me fix the road his way and only his way.He pays nothing to help me maintain this road and has not since 1983.Can he do this.

[Bradley Coxe]

In North Carolina, the owner of the property has no duty to maintain the easement for the easement owner, without a written agreement otherwise. The owner of the property also has the right to use the easement and the owner of the easement can't interfere with that right. Other than that, there is no power by the owner of the property to dictate how the road should be repaired.

[gordon mabe]

The easement owner will not stop putting pipes down in the ditches.The ditches are not finished and still have loose dirt to be cleared out.The workers has to keep pulling the pipes up to work on the road.This has become a 2-3day ritual.The workers are getting upset and is there anything I can do to stop him from doing this?

I

[Bradley Coxe]

The property owner cannot interfere with your use of the easement. You'd have to file a legal action against him for that interference, with a temporary restraining order and preliminary injunction to get him to stop quickly.

[Donna]

Can an HOA prohibit any actions on a NCDOT accepted road? I have received a notice for speaking with someone on the State Road. I find it hard to believe that an HOA can prohibit a conversation on a public road. No, this was not an argument, just a conversation that I walked up on between another homeowner and a contractor while heading to my mailbox. I'm in total disbelief and am trying to find out if they have a case to fine me - for a conversation.

[aldex]

nice..

[Bradley Coxe]

Donna,

Other than rules regarding things like signs and flags, I have never seen any declaration from a planned community limit conversations, whether they occur on HOA property or not.

[Jan]

We are part of a HOA that when the community was developed the Developer designated the road going through the neighborhood public. However, the road is NOT maintained by the County. It is maintained by the HOA. It is a small community with three streets. The street we are on connects with another neighborhood with less valued homes. They do not have an HOA. And that part of the street is maintained by the County. The intent of the Developer, prior to going bankrupt, was to turn the road over to state, most likely. We have lived here 4 years and just found out the Developer sold the rest of the lots to a person who tried to carry on the name of Developer vs lot owner to avoid paying fees on each lot. We happen to be on the street with most of the vacant lots ... we are the only house on the street and it is on a hill. We have people coming from the above neighborhood violating both County guidelines and HOA guidelines. Bring dogs to poop, dumping, sled ride on yard, using unauthorized vehicles. It is on a hill and they feel it is vacant land to use as they have in the past and wish currently. And the homeowners work together to keep grass on vacant lots mowed. The lot owners only do so twice a year which is not enough. We live in Forsyth County in Winston Salem. We know we can contact county pertaining to pet ordinances. Can we utilize police stating they are trespassing when walking / doing things on property other than the road since it is a public road? Do we have to post a sign stating public road use only. Property owned by HOA for "notice" notification. The DOT said we can get signoff from homeowners to make private road or prepare to turn over to DOT for maintenance.

[Bradley Coxe]

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I’m assuming the vacant lot is in the planned community. If the vacant lots are owned by the HOA, then the HOA can bring an action against non-authorized people for trespass either with a civil suit or calling the police. The difficulty would be in catching them. If there are individuals who own the lots but are not maintaining them, you may be able to assess them or hire somebody to mow and asses them the cost. Check your HOA declarations. If the road is private and owned by the HOA, the neighbors may have an easement over it, either expressly through the deed or through the plat. (and you couldn’t prevent them from using the road). They may still have a duty to maintain it. Just because the developer dedicated the road to the DOT doesn’t mean the DOT has accepted it. From your post you appear to be trying to get the DOT to accept it, which is a good idea if the roads meet their standards.    
Bradley A. Coxe3907-100 Wrightsville Ave.Wilmington, NC  28403(910) 772-1678(910) 799-7119 (fax)[email protected]
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