Our general counsel group often gets questions from clients about their Association’s authority to deal with roads in their communities. Whether the question is about speed limits, parking, towing, or just improving the roadway, the question always requires us to make a number of determinations before being able to answer the question. Following these steps and trying to determine the answers to these questions before contacting counsel may even help communities resolve the ultimate issue with little legal intervention (and less expense!).
1. Location. Where is this “road”? Despite the title of this article, a road is not necessarily a road. It could refer to a public roadway outside of the legal boundaries of the community, or even a driveway to a home that might be a limited common element. Pull out your plats or maps and identify the exact “road” you have a question about.
2. Public or Private? While most roadways within the boundaries of a condominium are private, that is not always the case. And with HOAs or planned communities, the roads within the boundaries can be either public or private. Plat maps often provide the best clues, so get out a magnifying glass (if your eyes are getting old like mine) and look at the roads themselves as well as the teeny-tiny numbered notes on the plat to see if there is any reference to the roads being public or private. Communities generally do not have the jurisdiction to regulate public roadways – but there are exceptions. Moreover, a roadway that was originally private can become public through various legal processes, including recording of a “dedication” of a roadway to the public with the local jurisdiction’s acceptance of that dedication.
3. Who Regulates? If the roadway is public, that usually means that the Association does not have the jurisdiction to regulate use of the roadway; so towing, parking and speed regulations are probably not within the Association’s authority. Instead, the Association should report potential violations to the local jurisdiction in control of the roadway. Associations generally can regulate private streets if they are common areas, including parking, speed limits and towing, but these details are most often controlled by the language of the governing documents themselves.
4. Who Maintains and Repairs? If the roadway is public, that does not necessarily mean that the local jurisdiction maintains and repairs. The governing documents and other potential recorded documents between the local jurisdiction and the Association (or the developer) can affect whether the Association has maintenance or repair responsibilities. Conversely, if it is determined that the roadway is private, that does not necessarily mean that the Association is required to maintain it – this answer will depend on the character of the roadway (e.g., common area, limited common area, or lot) and any specific maintenance and repair obligations in the governing documents. Unless the governing documents say otherwise, the Association will be most often be responsible for maintenance and regulation of common areas and the Owners will be responsible for maintenance of lots, but at this point, the governing documents are going to control who maintains and repairs.
If you have any questions about roadway issues in your community, feel free to contact us and we can help you navigate these sometimes tricky issues.
