Can I Get There from Here?
It is Important to Know Who Owns -- and Who Pays For -- the Roads to Your Property Before You Purchase It.
There
is perhaps no other part of owning property more important than the
right of access, but so long as it is possible to drive there, it is all
too easy to take that right of access for granted. When
purchasing property, one should pay careful attention to the nature of
that access to make sure it is adequate, and to be aware of who is
responsible for maintaining that access to avoid any expensive
surprises.
The
goal for access from one’s property is to connect, either directly or
indirectly, to a publicly-maintained road. Every title opinion
rendered by an attorney in North Carolina for a closing includes
information about public road access. Although a
publicly-maintained road may be owned by either the State or the Federal
Government, in the State of North Carolina all such roads are generally
maintained by the State. In addition, municipalities in this
state maintain roads they own within their jurisdictional limits while
counties neither own or maintain roads.
Direct Access to Public Road
One
possibility is direct access from a subject property to a state- or
city-maintained road. Verifying direct access to a
publicly-maintained road, however, should not be the end of one’s
inquiry regarding access. For example, the width of the
right-of-way is an important factor that may impact a property
owner. Because the edge of the pavement is often not the width of
the actual right of way, an owner may unexpectedly find a road crew
working on what she thought was her property for maintenance or
expansion.
Planned
improvements or expansions should also interest an owner because they
may involve taking part of her property. Future state and federal
road projects appear in a document called the “Transportation
Improvement Plan” (TIP). The jurisdiction responsible for TIPs
varies from location to location. Any local TIPs are compiled into
a final state level TIP. For municipalities, future projects may
appear in a capital improvement program, or may just be available
through a phone call to the public works or streets division.
Private Access to Public Road
The
second possibility for access to a publicly-maintained road from a
subject property is indirectly over a private road. Private roads
can take a few forms as follows:
(1)
The road may be maintained by a homeowners’ association, with the road
being an easement over multiple property owners or being owned outright
by the association.
(2) Maintenance for the road may be the responsibility of multiple property owners with no association in place.
(3) The road may just be an access easement over one or more of the adjoining properties.
The
requisite investigation for private roads is more extensive than for
public roads. Width is still a concern, but ownership and
maintenance responsibilities are more critical. For ownership, the
critical factor is whether the road is owned outright by an
association, or is merely an easement giving a right of others to use
the roadway. Ownership by an association is more formal and less
likely to lead to disputes over actual rights to travel on the road.
For
maintenance, it is important to know the procedure for payment.
In a well-run association, owners will pay regular dues for maintenance,
some of which will be set aside in a reserve fund for anticipated large
maintenance, repaving, or replacement projects. Various engineers
and consultants can prepare long-range improvement plans with
anticipated funds needed for various critical dates. Other
associations may only make special assessments when a repair is needed,
and these may be quite high depending on the number of owners and the
needed maintenance. When faced with a costly repair, many
associations seek to have the state or city take over maintenance.
There is no guarantee that will occur, and for the state, there is very
detailed and technical application process.
If
there is no association involved, maintenance may be governed by a road
maintenance agreement in the form of a contract among those who use the
road. These can vary widely in quality.
Be
aware that mortgage lenders typically require a road maintenance
agreement to be in place before they are willing to provide funding for
the purchase.
Lastly,
if the road is merely an easement for one person to cross another
person’s property, maintenance is solely the responsibility of the
person with the right to use the easement.
The ultimate conclusion is that careful investigation of access is warranted when investigating any property purchase.
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