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.