10 Questions To Ask About Roads

Below is an article written by Julie E. Blend that was recently published in the Dallas/ Ft. Worth Community Associations Institute Chapter magazine, Community Contact, Summer 2015.

10 Questions To Ask About Your Roads

Roads? Where we’re going, we don’t need roads.

Dr. Emmett Brown

Doc may be right that the future holds a paradigm shift in transportation patterns. However for the near future at least, community associations need to concern themselves with roads. Whether in a condominium or subdivision association, it is important to know the answers to the following questions:

  1. Are the roads public or private?

Subdivision roads are either public or private. A subdivision plat should indicate who owns the roads. Many gated communities privatize their roads. Although privatization of roads affords the association the right to regulate their use, it also means the association has the responsibility for maintenance and the liability that comes with it. It is possible to turn private roads back over to governmental control if the county agrees to accept them.

  1. Are condominium roads general or limited common elements?

In a condominium regime, whether streets, driveways and parking areas are designated as general common elements or limited common elements will usually determine who has the duty to maintain them. A review of the applicable site plan and governing documents is necessary to determine who has the obligation — the association, or the specific unit owners.

  1. Who has the duty to maintain the roads?

Unless the roads are public, a subdivision association generally has the duty to maintain the roads. Maintenance should provide reasonable all weather access, and can include repairs such as filling of holes, repairing cracks, resurfacing roadbeds, repairing and maintaining any drainage structures, removing debris, and maintaining any signs, markers, striping or lighting. Under the Texas Transportation Code counties have jurisdiction over road maintenance and usually maintain public roads, but there are exceptions when they do not.

  1. Who has the right to use them?

Roads are usually subject to easements, which are generally contained within the declaration, plat, or in a separate easement agreement. Examples include utility easements to utility companies and easements for ingress and egress. Easements can also be created by implication under equitable principles determined in a lawsuit.

  1. Are they properly insured?

If the roads are private, the association needs to be sure proper insurance coverage is in place. Associations should work with an insurance consultant who specializes in community association risk management for guidance. The decision to privatize roads should not be made without addressing adequate insurance coverage.

  1. How does the association pay for maintenance and repair?

If the subdivision roads are private, then they should be included in the association’s reserve fund. The same is true for condominium associations that have the duty to maintain the common element parking areas and driveways. Planning ahead for deferred maintenance can help avoid the need for special assessments.

  1. What about liability?

If the association owns the roads, or has the duty to maintain them through a maintenance agreement or otherwise, then it can be liable for road conditions. The standard of liability is for an unreasonably dangerous condition that causes injury or damage. Proactive management through road inspection and maintenance is essential to minimize liability.

  1. Can Liability Exist if the Association Does Not Own the Roads?

Even if the roads are public, associations should still be mindful of common areas or common elements that adjoin a public road. If a common area drive or path has inadequate sightlines, then the association could be held liable for injuries and damage that occur on the public road as a result. An association can also create liability for itself by modifying a road that it does not own or have the duty to maintain. For example, if the road needs a warning sign or other safety feature and an association decides to install it on their own, it has just created a liability for itself. Resist the temptation and instead go to the county and ask them to install the safety feature.

  1. What about parking?

Parking may be regulated in a subdivision if the association owns the roads. For condominiums, the association can regulate parking spaces and driveways, which are part of the common elements.   Parking potentially raises fair housing law violation issues in the case of handicap parking, and should not be weathered without help from legal counsel.

  1. What about speeding?

In the recent legislative session, Section 430.002 of the Transportation Code was amended to allow associations to install (in addition to a feedback sign) a solar-powered light-emitting diode (LED) stop sign on a road in the association’s jurisdiction if the governing authority consents, and the association pays for and maintains the sign.   With private roads, an association has the ability to implement its own speed enforcement plan, including installing speed limit signs. Whether public or private, check local municipal ordinances regulating traffic management. For example, the city of McKinney has a comprehensive Traffic Calming Program that addresses traffic control devices. Associations can even issue “speeding ticket” fines, however, usually fines are not imposed until after warnings have been issued.



Website Wary

Websites are a great tool for associations to communicate with their members.  It many ways a website improves the efficiency of association governance.  Do not ignore the possibility, however, that statements contained on an association’s website could present potential liability for the association.

For example, do not overstate association duties and responsibilities, or create duties that do not exist.  Although the existence of owners’ associations are a mechanism for maintaining property values, it is not a good idea to expressly state on the website that the association has the duty to maintain property values.  If an association has a website, Section 207.006 of the Texas Property Code now requires that an association post its recorded dedicatory instruments.  Do not give the association’s legal interpretation of its duties created by the dedicatory instruments.  You could end up creating a duty where one did not exist before.

Website content is an easy target for evidence to be used against a party in a lawsuit.  In a recent Virginia case, homeowners sued the owners’ association and cited information posted by the association on its website as evidence of diminution in value of their property values.  See Manchester Oaks Homeowners Association, Inc. v. Batt, 732 S.E.2d 690 (Va. 2012).  Although the Virginia Supreme Court did not uphold the jury award of damages for loss in property value, the court did uphold a finding in favor of the owners reimbursing them for assessments paid, and an award of attorneys’ fees of over $188,000.  Ouch!  The award of attorneys’ fees was based upon a Virginia statute similar to Texas Property Code Sections 5.006 and 82.161(b).  Don’t think it can’t happen in Texas.

Additional pitfalls to avoid are potentially defamatory statements about owners, contractors, or anyone else.  Be sure all photographs do not violate copyright laws.  Include a disclaimer stating that the association makes no warranties as to the information on the site, and that limits the liability of the association.  Have an attorney review your content at least annually as part of your legal audit, and when there is a substantive change to the website.