ailes. Although the Commission cannot referee
disputes between an association and its members,
it has disciplined its licensees for failing to deliver
the Subdivision Street Disclosure Statement, selling
lots in unapproved subdivisions, misrepresenting
material facts in a transaction, mishandling funds,
and other violations of the Real Estate License
Law. The Consumer Protection Division of the
North Carolina Attorney General’s Office also
has power to act against legal entities engaged in
certain unlawful practices [Phone:
919/716-6000].
Property Restrictions
Q: Can property restrictions dictate the style of my
home or the colors I choose for its exterior?
A: Yes, if the restrictions are properly drawn and
consistently enforced.
Q: Can the developer, through restrictive
covenants or sales contracts, control my choice
of builder or real estate agent3
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 properly
(e.g., boats, RV's, etc.), keeping of animals, and other
practices can lawfully be controlled by restrictive
covenants if they are properly created and enforced.
0: What if a purchaser doesn’t want 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 property' through foreclosure. If the
association is subject to the Planned Community Act,
it may impose a fine up to S100.00 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 owners 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.
Ql 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
agenq' 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. Tills is true even after all lots
have teen sold.
Q : Who is responsible for road maintenance in a
subdivision or planned community'?
A: Until responsibility for road maintenance is
lawfully transfened to a municipality or the North
Carolina Department of Transportation, either
the developer or the owners will be responsible.
However, if the roads are private or the developer
becomes insolvent, is dissolved or dies, the owners
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 first purchaser of each property7 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 very7 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' which “common areas” of a
subdivision or planned community are reserved
for the use of all owners?
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 entity7, these
areas (trail systems, recreation areas, lakes, raids, etc.)
cannot te used for any other purpose, and all of the
owners in the subdivision may use the property7 for
the specified purpose.
The North Carolina Real Estate Commission
P.O. Box 17100
Raleigh, North Carolina 27619-7100
919/875-3700
Web Site: ww'w.ncrec.gov
7.5 00 copies if Ibis public document were printed ill a cost of S XXX per copy.
REC 3.49
9/1/12
