Road Access to One's Property
A Legal Moment

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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Greg Gregory is an attorney and shareholder at Marshall, Roth & Gregory, PC. Greg's practice encompasses all forms of business and real estate transactions.
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