Q. Can the developer, through restrictive
covenants or sales contracts, control my
choice of builder or real estate agent’
A. Not in most cases. However, a developer
may lawfully refuse to sell directly to you
and instead require you to purchase a lot
and home from a particular builder. As to
real estate agents, a developer may include the
agent's commission in the home's purchase price.
Q. Don’t my constitutional rights to
freedom of speech, freedom of religion and
the enjoyment of my property' prevail over
the restrictive covenants or the powers of
the association?
A. Not in all cases. If you choose to purchase
a restricted property, you agree to abide by the
restrictions. Display of signs, flags or banners,
certain uses of the property', storage of personal
property (e.g., boats, RVs, etc.), keeping of
animals, and other practices can lawfully be
controlled by restrictive covenants if they are
properly created and enforced.
Q. What if a purchaser doesn’t w ant to
follow the restrictive covenants affecting the
property?
A. A purchaser who does not abide by the
restrictions on the property' can be fined. That fine
can become a lien on the property' and collected by
sale of the lot through foreclosure. If the association
is subject to the Planned Community' Act, it may
impose a fine up to S 100.00 per day, after giving
written notice to the owner of the alleged violation
and providing an opportunity to defend against the
charge at a hearing.
Q. What can I as an owner do if the association
is not performing its duties or if other owners
violate restrictive covenants or bylaws?
A. Your remedy is to sue the association and/or
the offending property owmers in court for an order
compelling them to abide by all lawful covenants
and bylaws. But remember, these are private rights
of action that you must assert on your own. No state
agency, other than the court system, can determine
or enforce an owner’s rights.
Q. Who pays my legal expenses if I am sued by
my association?
A. With only rare exceptions, you will be
responsible for your own attorney fees and other
legal expenses.
Roads and Common Areas
Q. Who owns the roads in a residential
subdivision or planned community?
A. Unless the roads have been dedicated to public
use and formally accepted by the appropriate
government agency, neither the state nor any public
agency owns legal title to the land over which a
street runs. Where the developer has retained title to
the streets (i.e., the lot lines border the edge of the
street), it is liable under state law' for erosion control
and possibly civil damages if injuries result from a
lack of maintenance. This is true even after all lots
have been sold.
Q. Who is responsible for road maintenance in
a subdivision or planned community?
A. Until responsibility for road maintenance is
lawfully transferred to a municipality or the North
Carolina Department of Transportation, either
the developer or the owners will be responsible.
However, if a developer becomes insolvent, is
dissolved or dies, the owmers alone will have to bear
the cost unless a government agency takes control.
Since there is no guarantee that any government
agency will ever take control of the roads in a
subdivision, owners are ultimately called upon to hear
the cost of road maintenance in many situations.
Q. Before I buy, will I know w ho is responsible
for the road maintenance?
A. Not necessarily. Since October 1, 1975,
developers and sellers of certain residential
subdivision lots have been required by law' to give
the hist purchaser of each property a Subdivision
Street Disclosure Statement containing important
information about road ownership and maintenance
responsibility. However, the application of this law is
quite limited, so it is very important that you inquire
into the status of roads in the subdivision and find out
who is responsible for their maintenance.
Q. How' do I know w'hich “common areas” of a
subdivision or planned community are reserved
for the use of all ow ners?
A. They will be specified by the developer in
the recorded map or plat of the property. Even if
the developer retains title to the common areas or
conveys them to some other person or entity, these
areas (trail systems, recreation areas, lakes, roads, etc.)
cannot be used for any other purpose, and all of the
owners in the subdivision may use the property for
the specified purpose.
The North Carolina Real Estate Commission
P.O. Box 17100
Raleigh, North Carolina 27619-7100
919/875-3700
Web Site: www.ncrec.state.nc.us
00. 000 copies of ibis public document were piinled at a cost of S. 000 per cop\\
REC 3.49
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