Old Access Road or Private Driveway? HOA Facing Maintenance Dispute

DebA1 (North Carolina)
Posts: 9

Posted:

Our HOA is trying to decide if we are responsible for maintaining a gravel "road" that has been used solely as a homeowner’s driveway for the past 10 years. No owner had a clue it was ever used as an access road.

It doesn’t appear on the county GIS map or Google Maps.
The developer says it was the original entrance road (from 2005) and claims the HOA should maintain it.
The homeowner’s deed calls it a subdivision access road, but the plat map given to owners doesn’t show it at all. Owner's property line runs through the middle of this "road".
The developer recently produced an older, partial map referring to it as "Road C."
Our HOA took over last year. The developer hadn’t maintained this "road" for at least 11 years. The homeowner has.
No one uses this gravel road except the homeowner (access to his garage), and there is a paved, county-maintained entrance road to the subdivision now.

My questions:
Does a newer plat map that omits a road override an older survey that includes it?
How can we protect the HOA from being stuck with maintaining what amounts to a private driveway?
Can an HOA abandon a road that is not used?
(Developer is extremely difficult to deal with — talking is not an option.)

Thanks for any advice!

SheliaH (Indiana)
Posts: 6,964

Posted:

If the developer won't talk to you, he or she might be compelled to speak upon getting a phone call and/or letter from the HOA attorney. If you don't already have him or her involved, take care of that immediately. All your questions are legal ones, so that's where you start - this isn't something you should take to the internet because most of us aren't attorneys.

In fact, you may need to consult an attorney who specializes in property line disputes- check with your local bar association for a few referrals.

You should also go to the city or county to get a map of the community to see where all the property lines are, as that could settle some of this. Perhaps sone of the property might need a new survey to determine who owns what.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

ElleN (Idaho)
Posts: 1,338

Posted:

I have a lot of experience with property line disputes. It is clear to me that the devil is in the details here. What you provided is a good start but I would not want to guess without having in front of me every document you named and more documents.

From a liability standpoint, getting an answer to your query is important.

Your HOA should speak to a well-qualified land use attorney as soon as possible.

As a small part of your preparation, the fact that the owner has maintained the road for many years could result in his being obligated to maintain the road in the future, as part of prescriptive easement common law. These words are right out of the mouth of a land use attorney where I live. What are the implications? Suppose the gravel road develops a pothole. Sally drives on the road and has a terrible accident, with the pothole being the primary cause. Can Sally potentially win a lawsuit against the owner who maintained the road for many years? Yes, on grounds of prescriptive easement.

Can the owner who has maintained the road suddenly stop maintaining it, insisting it is not his to maintain, and expect no legal consequences? No.

Let me know if you want more information about prescriptive easement specific to North Carolina.

TerriS6 (California)
Posts: 3,284

Posted:

Quote:

Posted By DebA1 on 04/27/2025 8:25 AM
Our HOA is trying to decide if we are responsible for maintaining a gravel "road" that has been used solely as a homeowner’s driveway for the past 10 years. No owner had a clue it was ever used as an access road.

It doesn’t appear on the county GIS map or Google Maps.
The developer says it was the original entrance road (from 2005) and claims the HOA should maintain it.
The homeowner’s deed calls it a subdivision access road, but the plat map given to owners doesn’t show it at all. Owner's property line runs through the middle of this "road".
The developer recently produced an older, partial map referring to it as "Road C."
Our HOA took over last year. The developer hadn’t maintained this "road" for at least 11 years. The homeowner has.
No one uses this gravel road except the homeowner (access to his garage), and there is a paved, county-maintained entrance road to the subdivision now.

My questions:
Does a newer plat map that omits a road override an older survey that includes it?
How can we protect the HOA from being stuck with maintaining what amounts to a private driveway?
Can an HOA abandon a road that is not used?
(Developer is extremely difficult to deal with — talking is not an option.)

Thanks for any advice!

I wouldn't give up any real estate - evidently it is owned by member. The one homeowner would probably need member approval to use it exclusively. You might be able to condition exclusive use of the road on the member bearing responsibility for maintenance.

TerriS6 (California)
Posts: 3,284

Posted:

I meant evidently the road is owned by the membership not "a member."

DeanJ
Posts: 1,786

Posted:

Quote:

Posted By DebA1 on 04/27/2025 8:25 AM
Our HOA is trying to decide if we are responsible for maintaining a gravel "road" that has been used solely as a homeowner’s driveway for the past 10 years. No owner had a clue it was ever used as an access road.

It doesn’t appear on the county GIS map or Google Maps.
The developer says it was the original entrance road (from 2005) and claims the HOA should maintain it.
The homeowner’s deed calls it a subdivision access road, but the plat map given to owners doesn’t show it at all. Owner's property line runs through the middle of this "road".
The developer recently produced an older, partial map referring to it as "Road C."
Our HOA took over last year. The developer hadn’t maintained this "road" for at least 11 years. The homeowner has.
No one uses this gravel road except the homeowner (access to his garage), and there is a paved, county-maintained entrance road to the subdivision now.

My questions:
Does a newer plat map that omits a road override an older survey that includes it?
How can we protect the HOA from being stuck with maintaining what amounts to a private driveway?
Can an HOA abandon a road that is not used?
(Developer is extremely difficult to deal with — talking is not an option.)

Thanks for any advice!

What you are describing may be an easement. The HOA is not required to maintain an easement.

ElleN (Idaho)
Posts: 1,338

Posted:

Quote:

Posted By DeanJ on 04/28/2025 5:35 AM
What you are describing may be an easement. The HOA is not required to maintain an easement.

Who maintains any easement depends on the terms of the easement.

Generalizing here is dangerous.

DeanJ
Posts: 1,786

Posted:

Quote:

Posted By ElleN on 04/28/2025 7:23 AM

Posted By DeanJ on 04/28/2025 5:35 AM
What you are describing may be an easement. The HOA is not required to maintain an easement.

Who maintains any easement depends on the terms of the easement.

Generalizing here is dangerous.

No more dangerous than not knowing definitions. An easement is not more than a right. If the owner of the easement choses to exercise the right to enter or use, is at their discretion.

Common elements may be within an easement, but the HOA is not required to maintain that common element unless specifically required by the declaration.

Two examples. A storm sewer is on an easement across my property and the declaration requires the HOA to maintain.
An underground electric cable is on another easement under my property to an irrigation system in an adjacent common area. The HOA is not required to maintain that electric service.

Nor is OPS HOA required to maintain a temporary road across private property they do not intend to use that only services the owners garage.

ElleN (Idaho)
Posts: 1,338

Posted:

Quote:

Posted By DeanJ on 04/28/2025 8:12 AM

No more dangerous than not knowing definitions. An easement is not more than a right. If the owner of the easement choses to exercise the right to enter or use, is at their discretion.

Common elements may be within an easement, but the HOA is not required to maintain that common element unless specifically required by the declaration.

... or the written terms of the easement. The latter may very well be recorded with the county. Or the terms of the easement may conflict with the declaration.

Your wording above is also strange AFAIC. In the language of easements: We have no idea who is the dominant estate and who is the servant estate here.

I do not buy your generalizations. The net has plenty of discussion rejecting them as well.

What is most important: Do not let the dispute the OP describes go to litigation. The cost of writing up an agreement that resolves any dispute and then paying for the maintenance may very well be a lot less than suing.

DeanJ
Posts: 1,786

Posted:

Quote:

Posted By ElleN on 04/28/2025 8:26 AM

Posted By DeanJ on 04/28/2025 8:12 AM

No more dangerous than not knowing definitions. An easement is not more than a right. If the owner of the easement choses to exercise the right to enter or use, is at their discretion.

Common elements may be within an easement, but the HOA is not required to maintain that common element unless specifically required by the declaration.

... or the written terms of the easement. The latter may very well be recorded with the county. Or the terms of the easement may conflict with the declaration.

Your wording above is also strange AFAIC. In the language of easements: We have no idea who is the dominant estate and who is the servant estate here.

I do not buy your generalizations. The net has plenty of discussion rejecting them as well.

What is most important: Do not let the dispute the OP describes go to litigation. The cost of writing up an agreement that resolves any dispute and then paying for the maintenance may very well be a lot less than suing.

Ellen,

The dispute may have to go to litigation. The lot owner may demand the maintenance and the other affected owners may demand their funds not be spent to maintain a private driveway on private property.

And if there is an easement, doesn’t mean it’s the HOA’s easement, nor does that automatically require the HOA or the easement holder to maintain.

The item is identified on the documents as temporary according to the OP. That by definition kinda suggests it was never intended to be permanent.