Who Controls the Roads?
Community Associations Institute – Georgia Chapter
Third Quarter Magazine
By: Joshua F. Jones, Esq.
Winter Capriola Zenner, LLC
The factual determination of whether neighborhood roads are public or private has an immense
impact on the association’s rights and obligations. Specifically, the association’s maintenance
responsibility and enforcement rights are contingent on who controls the roads. Therefore, it is paramount
that boards invest the time and effort to determine whether one’s community roads are public or private.
There are many methods you can use to determine whether your community’s roads are public or
private. Often times, the answer requires a very brief investigation. Of course, sometimes, it may be
necessary to consult with your association’s legal counsel or another real estate expert.
If your community is a gated community, it is reasonably safe to assume that the roads within
your community are private. In general, community associations and private citizens cannot restrict
access to public roads; therefore, all roads in a gated community must be private roads. If your
community; however, does not restrict or limit vehicular access, you will need to continue your
Conveyance of Common Areas
During the turnover period for your community, the developer or builder will usually convey the
common areas within the community to the association. In cases where the roads are private, the roads
will be part of the conveyance. Alternatively, if the roads are public, the conveyance will not include the
roads. To determine what property was conveyed to your association, you should reference your county’s
land records to locate any deeds between the developer or builder and the association. To research
property records, you can visit your county’s real estate records room located at the superior courthouse.
or search online on the third-party site Georgia Superior Court Clerk’s Cooperative Authority
(GSCCCA). If you cannot locate any deeds or if your association does not have any common areas, you
should continue your investigation by referencing your community’s subdivision plat. If your association
does not have a copy of your community’s subdivision plat, you may be able to locate a copy in the
county land records where your community is located.
A subdivision plat is intended to provide an accurate description of a section of land, including
the boundaries and location of individual lots, roads, easements and other pertinent information. Many
subdivision plats, but not all, contain notes or declarations, which may specifically state or declare that
the roads within the community are private or public. Additionally, the roads on the subdivision plat may
be labeled as private or right-of-way. Unless otherwise noted on the subdivision plat, a right-of-way label
means that the roads are public. If your subdivision plat is silent as to the status of the roads and you are
unable to make a determination using any of the methods above, I recommend you consult your
association’s legal counsel.
The association’s governing documents (i.e., Declaration/CCRs) outline the maintenance
responsibilities for the association and homeowner. In almost all cases, the association is responsible to
maintain the association’s common areas to include the private roads located within the community.
Typical maintenance responsibilities include filing potholes, removing debris, and paving. On the other
hand, if the community’s roads are public, the association bears no maintenance responsibility. Generally,
the local municipalities (e.g., city or county) or their agents maintain all public roads.
While an association may not be responsible for specific maintenance obligations in connection
to a public road, the board should notify the local municipality responsible for said maintenance of any
safety issues, road damage, or any other issue that requires attention.
For communities with private roads, the board has very broad authority to regulate the use of the
roads. Generally, the association’s governing documents will contain use restrictions related to vehicle
parking and the association’s enforcement rights. However, the board may also adopt rules and
regulations which further address street parking, speed limits, vehicle storage, towing/booting, and other
issues pertaining to the roads.
When it comes to public roads, there is a common misconception that the association does not
have enforcement rights. While it is true that the association’s authority is not as broad and the association
may not tow or boot vehicles, the association may still impose fines or other sanctions pursuant to their
specific enforcement provisions contained in their governing documents.
With the knowledge that your community’s roads are public or private, you will be in a better
position to perform your maintenance and enforcement obligations.