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

[cindy]

We have several road (stub outs) in our HOA that don't lead to anywhere. (The developer was originally going to develop the land adjacent to ours but he lost the property in a foreclosure. On the plat map it says they are easements. How do we find out who owns these? The other roads in our subdivision were turned over to DOT but not these stub outs that were eventually supposed to connect to the property next to us.

[Bradley Coxe]

The developer would still own the roads unless they were sold or lost in the foreclosure. Look through the register of deeds and property tax records. Both are usually searchable online. If there is an HOA, they may have been deeded to the HOA or the declarations may require the HOA to maintain them.

[sherry]

Bradley - I live in a private community (the roads are maintained by the HOA). The Board has imposed the following: "All North Carolina driving laws will apply when driving on community roads unless posted otherwise.This includes pedestrian right-of-way, drivers license regulations, and vehicle registration, inspection and license tag laws".

I drive a utility vehicle as defined by the NCDMV: A motor vehicle that is (i) designed for off-road use and (ii) used for general maintenance, security, agricultural, or horticultural purposes. "Utility vehicle" does not include an all-terrain vehicle or golf cart, as defined in this section, or a riding lawn mower.

My question is can the HOA prohibit me from driving my utility vehicle on our private streets? This is a small community of 84 lots with only 26 homes built.

[Bradley Coxe]

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 Based on that information, if you are allowed to drive the vehicle on a public road, you should be able to drive it on the private roads of the HOA.

[Paul Holden]

If I live in a HOA maintained neighborhood and pay fees. I am one of three houses built with about 70 empty lots. About ten of the lots are owned but not built on yet. None of the lots are being maintained. WE have a grass area that is mowed that is designated as a park. Is it ok that the HOA allow public use of our roads and park? If an HOA allows public use of roads and parks and I am paying for the maintenance of them what are my rights?

[Bradley Coxe]

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Assuming the declarations do not say anything different, the HOA can allow public use of the private roads and the park. There is a point where the use by others would be so extreme as to prevent you from using them and that the HOA cannot do to a homeowner in good standing.  

[Janet Taylor]

Is it possible to have state maintained public roads within a community and then install gates at the entrance, keeping the roads public ally maintained?

[Bradley Coxe]

In order to have a gated community and limit access through a gate to residents and authorized visitors,the road has to be privately owned and maintained.

[Holly Smith]

I am proposing to build a 72-unit senior rental community in a NC beach town (near Wilmington) on a flag lot, and the new UDO Administrator states that I cannot place a monument sign at the entrance driveway because once the driveway is built, he demands that I dedicate it to the Town. I cannot have a monument sign on a publicly-dedicated road nor on an adjoining property because then it becomes a "billboard." Also, he does not "like" flag lots (although I can find no prohibition in the UDO against them). I have no issue with building the driveway to NCDOT or Town requirements, but I have no intention now or in the future to publicly dedicate this driveway that ends at my building. Can the UDO Administrator FORCE me to dedicate my driveway to the Town, which then would create hardship in lease-up and also impact my ability to obtain funding--? Rental apartments need visibility from a public thoroughfare, and my 700' long driveway,which is part of my site and is needed to meet density requirements, isn't a public thoroughfare. THANK YOU.

[Bradley Coxe]

Your issue is really beyond what information I can provide in this blog. I advise you to contact an attorney.

[Barb]

I lease a lot on a lake and we have this turnaround in front of our house and we have maintained it for 10 years and called it our driveway, now the city says it is a public road and we cannot park and block traffic on it , that we must leave room for cars or trucks to turnaround , They is the main road approx. 30 feet away where our mail box is. what right do we have about this and using it to park our cars

[Bradley Coxe]

If the DOT owns the road, they can regulate it.

[Tammy]

I live in an old small community outside city limits with no HOA. Last year a Charter School started development and opened an entrance to one of our dead end roads. Now we have parents, teachers and all types of construction vehicles speeding through our little community. We have had the police out many times but when they leave the drivers start speeding again. We don't know who we can contact or what we can do. The NCDOT told us that when the plans were approved for the school there were no restricttions given. We have talked to the school but they continue to lie to us. It is a state owned and maintained road. We would ultimately like to have that access closed but would settle for speed bumps of any kind.

[Bradley Coxe]

You could start by calling the N.C. Department of Transportation, which owns and maintains many roads in Brunswick, New Hanover and Pender counties. The number for the DOT division office in Wilmington is 251-5724.

But if the DOT maintains your road, you simply won’t get speed humps or bumps. The department, as a policy, has never installed them because it believes they can cause accidents. It will, in some situations, install chokers or other “traffic calming” devices, however.

[Marie]

I am the first home owner on a private dirt road. There are 6 other home owners on the same road. Am i allowed access to the entire road (it is a dead-end road)? We are in the country and the road is relaxing to walk on, children to ride bikes on etc. But a few residence have forbid us from using the rest of the road. Do they have the authority to stop me from using the road?

[Dana Bailey]

We live on a private dirt road. We have maintainef the road for the past 15 years. A property wassold to a couple that does not contribute to the care of the road but insist on speeding and destroying any work that is done. Speaking with them has not helped. Do we have the right to install speedbumps. The original developer has passed away and the property now belongs to his family. They have turned over care to us and said they don't have a problem with the speed bimps.what are our rights along with the speedy neighbors. The road is less than a mile long.

[Bradley Coxe]

It depends on what your easement rights are. If the entire road is on a plat, or if you have an express interest in the deed, you are entitled to use it as long as you do not overburden the easement. You should consult with an attorney who can investigate your rights.

[Bradley Coxe]

If it is a private road and the owners have given you permission, you should be able to install speedbumps as that presumably would not impair the other families access and use of the road. As the answers to these questions can change due to several details, you should consult with an attorney.

[Brad]

We live in an HOA in Wake County, outside of the city limits. Our road is public and maintained by the NCDOT. There was runoff from our side of the street across the road and flooding the neighbors garage. DOT came and raised the middle of the road to prevent the runoff. Now there is a huge puddle on our side of the road to the middle. A DOT engineer says it's the curb gutter on our side of the road that is not running correctly to the drain. Since it's not the asphalt, they are not willing to fix it. Whose responsibility is it to fix? The HOA, DOT, or ours. It does not appear that our property rights extend to the road due to an easement. We are at a loss as our HOA is now claiming private property. The road was constructed in 89 and we bought in 07. The engineer from the DOT says it does not appear to have been done correctly to begin with.

[Bradley Coxe]

This is a fairly complicated issue that is beyond what I can help with in these comments. You should contact a real estate attorney in your area.

[Rich]

Hi. Prior to building homes a developer paved the roads and then sold lots to a builder, who then allegedly damaged the already completed roads by using heavy construction equipment completely rearrange the topography by moving large quantities of earth between lots. The developer totally owned the roads and still does. He now claims that the builder was responsible for failures to the roads and that he is not responsible. I maintain that the developer, who had control of the roads, failed to take actions that would have prevented the builder from abusing the roads. These actions could have been anticipatory, such as covenants in the deeds that as needed put limits on weights and other factors. Or, they could have been in the form of complaints and demands that harmful actions are occurring and should cease.

Who is right?

Thanks

[Daliff]

I recently received a fine from my HOA for parking on the road. The HOA declarations do state that there is no parking allowed on the street. However, these are county owned and maintained roads. Does the HOA have the authority to establish more restrictive regulations?