Homeowner Rights & Legal Options in North Carolina

When you buy a home in a community with a homeowners association (HOA), you expect the shared common areas – like parks, pools, sidewalks, or clubhouses – to be well maintained. In North Carolina, HOAs play an important role in upkeep of shared neighborhood spaces, funded by the dues homeowners pay.

Unfortunately, there are times when an HOA fails to maintain common areas properly. This can lead to safety hazards, decreased property values, and plenty of frustration. Homeowners in this situation may ask: What are my rights, and what legal options do I have?

In this post, we’ll explore how North Carolina law (including the North Carolina Planned Community Act) defines HOA maintenance duties, the circumstances under which an HOA might be held liable for poor upkeep, and the steps homeowners can take – from raising the issue with the board to pursuing legal remedies. We’ll do this in a reader-friendly way, providing actionable advice without heavy legal jargon.

Have specific questions about your HOA legal issues in Brunswick or New Hanover County, give us a ring at the Law Office of Bradley Coxe: 910-834-8400

What Are Common Areas & Who Is Responsible for Maintenance?

Common areas (also called common elements) are the shared parts of a community that all owners have the right to use and that the HOA is responsible for. These can include landscaping, playgrounds, parking lots, swimming pools, clubhouses, walkways, and other amenities that are not part of individual homeowners’ lots.

Your community’s governing documents (such as the Declaration of Covenants, Conditions & Restrictions and bylaws) will detail which areas are considered “common” and typically state that the HOA must maintain them. In fact, under North Carolina law, this is not just a suggestion – it’s a legal obligation. The North Carolina Planned Community Act (N.C. Gen. Stat. § 47F) explicitly requires that, unless your declaration says otherwise, “the association is responsible for causing the common elements to be maintained, repaired, and replaced when necessary”

In practical terms, this means the HOA board must use the dues you and your neighbors pay to keep those shared facilities in good shape. Routine tasks like landscaping, cleaning, and repairs of community property are among the HOA’s major duties.

For example, the HOA should ensure the grass in common parks is cut, the community pool is cleaned and safe, the clubhouse lights and HVAC are functioning, and any elevators or tennis courts are properly serviced

HOAs are also typically responsible for unexpected repairs in common areas – say the clubhouse roof is damaged in a storm or the playground slide breaks – and for replacing aging infrastructure (like resurfacing a cracked basketball court when needed)

On the other hand, homeowners are usually responsible for maintenance of their (your house and lot). The distinction between what is your responsibility and what is the HOA’s should be outlined in the governing documents. If you’re unsure, check those documents and Chapter 47F of the NC General Statutes (the Planned Community Act) which governs most HOAs in the state

When Can an HOA Be Held Liable for Poor Maintenance?

If an HOA drops the ball on maintaining common areas, can it be held legally accountable? The answer is yes – in certain situations the HOA can face liability for failing to do its duty. An HOA’s board of directors has a duty of care to act reasonably in managing the association, which includes taking care of common property. When maintenance is grossly neglected, several legal issues might come into play:

 

• • Breach of Covenant or Contract: Purchasing a home in an HOA community is essentially entering a contract – you agree to pay fees and follow rules, and the HOA agrees to maintain the common areas and provide services as outlined in the covenants. If the governing documents explicitly say the HOA must maintain certain areas or facilities (and many do, even if generally), and the HOA isn’t doing it at all, they may be in breach of the covenant with homeowners. For example, if the covenants state the HOA “shall keep all common parks and landscaping well-maintained,” and the HOA allows the entrance park to become overgrown and full of hazards, homeowners could argue the HOA is violating that agreement. The strength of a breach claim can depend on how specific the maintenance obligation is in writing – the more clearly it’s spelled out, the stronger the case that the HOA is failing to live up to its obligations.

• • Negligence: Apart from contractual duties, HOAs are expected to exercise ordinary care in maintaining common areas. If an HOA’s lack of maintenance creates an unsafe condition that causes injury or property damage, the HOA could be liable under a negligence theory. For instance, imagine the HOA ignored a rotting tree in a common area and that tree falls on someone, or the HOA failed to fix broken stairs in the clubhouse and a resident falls and is hurt. Homeowners have a right to expect the HOA to act as a reasonably prudent property manager; if the HOA fails to act in a reasonably safe manner, it could be considered negligent. In real terms, this means if you were injured because the HOA consistently failed to address a known hazard (like ice on community sidewalks every winter or a malfunctioning gate that caused an accident), you might have grounds to sue the HOA for negligence and seek compensation for your injuries.

• • Breach of Fiduciary Duty: HOA board members owe a fiduciary duty to the association (and indirectly to its members) to act in the community’s best interest. If a board’s failure to maintain common areas is due to mismanagement or even misconduct (for example, the board is skimping on maintenance while misusing funds elsewhere), affected homeowners might claim the board breached its fiduciary duty. This is a more complex claim and can be harder to prove unless there’s clear evidence of bad faith or financial misdeeds. However, it’s worth noting if the scenario involves the board acting irresponsibly or in their own self interests, legal action for breach of fiduciary duty could be considered.

In summary, an HOA can be held liable if their lack of upkeep violates the governing covenants or falls below basic standards of care. However, liability isn’t automatic just because maintenance isn’t perfect. There’s a difference between an HOA being a little slow to mow the lawn and an HOA outright refusing to perform necessary repairs for months. The latter could give rise to legal claims; the former might be frustrating but not necessarily lawsuit-worthy. It often depends on the severity of the neglect and the harm it causes.

What Can Homeowners Do If the HOA Fails to Maintain Property?

If your HOA is failing to maintain common areas, you don’t have to sit by quietly. There are several practical steps you can take to address the issue before it escalates into a legal battle. Here’s a roadmap for concerned homeowners:

 

1. 1. Review Your Governing Documents: Start by pulling out your HOA’s declaration, bylaws, and any rules. Confirm what the HOA is responsible for maintaining and what standards, if any, are described. Knowing the exact obligations (e.g. “HOA shall maintain all lawns and landscaping in common areas in a neat condition”) arms you with the facts when you confront the issue. It also avoids the scenario of accusing the HOA of neglect, only to find out a particular area isn’t actually their responsibility.

1. 1. Document the Problem: Keep a record of the maintenance issues. Take clear photos of the neglected common areas – whether it’s an overgrown playground, a broken fence around the pool, or a green, algae-filled pond that should be maintained. Note the dates when you observed these problems. The more evidence you have, the better. If, for example, the clubhouse roof has been leaking for six months, keep a log of each time it rains and the roof leaks. All this documentation could be useful if you need to prove the HOA’s failure later.

1. 1. Notify the HOA in Writing: Don’t assume the board knows about the problem. Write a formal complaint or maintenance request to the HOA or its management company. Be polite and professional, but specific: describe the issue, why it’s a concern (safety, property values, etc.), and reference the HOA’s duty (citing the covenant or rule, if applicable, that they are supposed to maintain that area). Request a timeline for the repair or maintenance. Sending an email is good (you’ll have a timestamped record), and sending a letter via certified mail can also be effective to show you mean business. This creates a paper trail showing you gave the HOA an opportunity to fix the issue.

1. 1. Attend Board Meetings and Raise the Issue: Most HOA boards meet regularly, and homeowners often have a right to attend and voice concerns (perhaps during a homeowner forum portion of the meeting). Attending a board meeting lets you put the issue on the official record and directly ask the board about it. Prepare by bringing your documentation and even copies of the relevant sections of the governing documents or the North Carolina Planned Community Act that highlight the HOA’s maintenance duties. Calmly explain the problem and politely ask what the board plans to do. Remember, HOA Board Members often volunteer to serve and don’t get paid. They’re also your neighbors. It helps to be nice. Sometimes, this direct approach prompts action – the board might explain any obstacles (maybe funding issues or pending contractor schedules) or realize homeowners are serious about getting results. Make sure the meeting minutes reflect your complaint. This not only pressures the board to act, but also serves as evidence that the HOA was made aware of the problem.

1. 1. Build Homeowner Support: Chances are, if you’re upset about poor maintenance, other neighbors are too. Talk to your fellow homeowners and see if they share your concerns. A collective voice can carry more weight. Consider starting a petition or collectively writing a letter to the board. If many residents attend a board meeting to complain, the board is more likely to feel accountable. In extreme cases where the board is completely unresponsive, homeowners in North Carolina can call a special meeting (check your bylaws for the procedure, such as a percentage of owners needed to agree). At that meeting, you could discuss the issues as a community and even consider changes in the board’s composition (for example, voting to remove or not re-elect board members who aren’t fulfilling their duties). Sometimes the threat of a board recall or election challenge motivates the HOA to address the maintenance problems.

1. 1. Follow Up (Persistently but Politely): If the HOA gives vague promises or says they’ll look into it, set a reminder to follow up. If weeks go by with no progress, send another written reminder or bring it up again at the next meeting. HOAs, like any organizations, can suffer from procrastination or forgetfulness, so persistence can be key. Always keep your communications factual and respectful – you’re building a case, not just venting.

By taking these steps, many maintenance issues can be resolved within the community framework. Ordinarily, HOA boards will act when they see homeowners are knowledgeable and determined to get results. However, if you’ve tried all the above and nothing changes, it might be time to explore legal remedies, including consulting legal counsel.

What Legal Remedies Are Available?

When an HOA simply will not fulfill its maintenance obligations despite repeated requests, homeowners have a few legal avenues to consider. In North Carolina, as in other states, you generally cannot turn to a government agency for HOA enforcement (the NC Department of Justice notes that there’s no state agency that oversees HOA disputes. That means your remedies could require legal action or threat of legal action to enforce your rights. Here are some legal options:

 

• • Injunctive Relief (Court Order to Perform Maintenance): One powerful remedy is to seek an injunction against the HOA. This involves filing a lawsuit asking the court to order the HOA to do or stop doing something – in this case, to perform the required maintenance or repair. If you can show the HOA is obligated to maintain a common area and has failed to do so, a judge could issue an order compelling the HOA to make the repairs (this is often called a “mandatory injunction”). For example, if a community pool has been closed all summer because the HOA wouldn’t fix a known electrical problem, a court might order the HOA to hire a electrician and reopen the pool. Injunctive relief is particularly useful when the main goal is to get the problem fixed, not to get money from the HOA.

• • Damages (Money Compensation): If the HOA’s lack of maintenance has caused you a specific loss, you might sue for damages. This is common in cases of personal injury or property damage. For instance, if your condo unit was flooded because the HOA failed to maintain the roof, you could sue for the cost of your repairs. Or if you slipped on an icy common sidewalk that the HOA neglected and you incurred medical bills, you could seek reimbursement for those costs and related damages. Keep in mind, suing for money requires proving the HOA’s failure directly caused the loss. General disappointment (“my property value might be lower because the neighborhood looks shabby”) is hard to quantify, but tangible losses (repair bills, medical expenses, etc.) are somewhat easier to pursue. In some circumstances, North Carolina law may allow you to recover attorney’s fees if a court finds the HOA willfully violated its responsibilities – some HOA statutes or the community’s declaration might include provisions for the prevailing party to get attorney fees (for example, NC law limits what HOAs can charge in attorney fees to homeowners, but if you win a breach of covenant case, the Court (the Judge) might award you fees when and if legally appropriate).

• • Breach of Covenant Lawsuit: As discussed above, you may be able to file a lawsuit for breach of the HOA’s covenants/contract with homeowners. The goal could be both an injunction (to enforce the covenant to maintain the property) and possibly damages if applicable. In a breach of covenant case, you’d argue that the HOA’s failure to maintain common areas violates the terms of the governing documents, and you’d ask the court to enforce those terms. The success of this will depend on the language in your documents and the evidence of the HOA’s failure. If the documents plainly require the HOA to do X and they haven’t done X, that’s clearly helpful.

• • Negligence Lawsuit: If someone was hurt or property was damaged due to the poor maintenance, a negligence suit (possibly as a personal injury case) is another possible route in some circumstances. You’d need to show the HOA had a duty, it breached that duty by not maintaining the area, and that negligence caused (the proximate cause) of the injury. For example, a homeowner might sue after falling on a broken staircase the HOA should have fixed, seeking damages for medical bills and pain and suffering.

• • Contacting an Attorney / Demand Letter: Sometimes, the step before an actual lawsuit is having a lawyer send a demand letter to the HOA. A formal letter from an attorney, citing the HOA’s legal obligations and threatening legal action if not remedied, can be effective. HOAs don’t like litigation (it’s expensive and distracts from community business), so a strongly worded letter from your attorney might prompt a quicker response than your individual complaints did. This route allows you to assert your rights without immediately going to court. If the letter doesn’t spur action, you can then decide whether to follow through with filing a lawsuit.

• • Mediation or Arbitration: While not specifically required by North Carolina law in HOA disputes, some HOA communities have provisions for alternative dispute resolution. Mediation is a process where a neutral third party helps you and the HOA reach a compromise, and arbitration is like a private judge deciding the case. Check if your HOA’s bylaws mention any dispute resolution procedure. Even if not required, mediation could be a worthwhile step to resolve the issue without a protracted court fight.

Before leaping into any legal action, it’s wise to consult with a North Carolina attorney experienced in HOA or real estate law. They can assess the strength of your case and advise on the best course. Lawsuits can be time-consuming and costly, and outcomes are never guaranteed. However, just the act of filing suit (or clearly threatening one) can often motivate an HOA to find a solution, since a court battle is in nobody’s interest.

Can Homeowners Withhold Dues Over Maintenance Issues?

It’s extremely tempting to consider withholding your HOA dues to “get back” at the association for not maintaining things. After all, why keep paying if the HOA isn’t doing its job, right? However, withholding your assessments is not a recommended strategy and can seriously backfire. In North Carolina, as in most states, your obligation to pay HOA dues is independent of the HOA’s obligation to maintain common areas. The law basically says: as a homeowner, you must pay your dues on time, and you cannot unilaterally stop paying even if you think the HOA is breaching its duties. If you withhold payment when required, you could be in violation of the covenants, and the HOA typically has the power to enforce payment through legal means.

As such, you “can” withhold your fees, but you expect the HOA to sue you and force you to pay all the dues plus their attorney’s fees and costs for collection

In North Carolina, HOAs have collection tools under the Planned Community Act. If you fall behind, the HOA could possibly (after proper notice) file a lien on your property for the unpaid amounts. That lien coild eventually lead to foreclosure of your home if you don’t pay up. In other words, you could actually risk losing your home by refusing to pay HOA dues, even if your reasoning is that the HOA isn’t maintaining the common areas. It’s not a risk worth taking.

Also, courts generally don’t look kindly on “self-help” measures like withholding dues. If your dispute escalates to court, a judge may be less sympathetic if you deliberately stopped paying what you owe. The proper channels are the complaint and legal remedies we discussed above, not withholding fees.

Bottom line: Continue paying your HOA dues in full and on time, even while you dispute the maintenance issue. You can certainly note in writing that you’re unhappy and reserving your rights, but send the payments. By doing so, you’ll keep the moral high ground and avoid giving the HOA any ammo against you. Save the fight for the real issue – the HOA’s failure to maintain – and not a side battle over your assessments.

How Can Homeowners Strengthen Their Case?

If it looks like you might need to take legal action, or even just to pressure the HOA for change, it’s important to build a compelling case. Think like a detective or a journalist: gather evidence, keep records, and show the story of the HOA’s failures comply with the Association’s governing documents and law. Here are some tips to improve your position:

 

• • Keep Detailed Records: Start a log of every instance related to the maintenance failures. Note dates and times of issues (e.g., “June 5: Security lights at entrance not working”). Also document any communications – when you emailed or called the HOA, when you got responses (or if you didn’t), and what was said. If you speak to a board member in person, write down notes of the conversation. Having a timeline of events will paint a clear picture of the ongoing problem and the HOA’s lack of response.

• • Photographic Evidence: Pictures can be powerful. Take photos (and even video if relevant) of the common area problems over time. If the issue is visual (like landscaping negligence, broken equipment, or peeling paint), update the photos periodically to show it getting worse or remaining unfixed. For example, photograph that crumbling clubhouse walkway in May, then again in July and September. This would show the duration of the neglect.

• • Witness Statements: Talk to neighbors who are also aware of or affected by the issue. If needed, they may be willing to provide witness statements or testify about how long a problem has gone on or how it has impacted them. If the case ever went to court or mediation, having multiple homeowners echo the same concerns tends to add credibility. It’s not just “one cranky homeowner” – it’s a community issue.

• • HOA Communications and Documents: Retain copies of everything the HOA sends out that might be relevant. Did the HOA ever send a newsletter or email acknowledging the issue (“we know the elevator is down, we’re working on it”)? Did they include a line in the budget about certain maintenance? These could be admissions or evidence of awareness. Also, request to see HOA records if necessary – in NC, homeowners have the right to access certain association records like budgets, meeting minutes, etc. (the Planned Community Act provides for access to records, specifically §47F-3-118). Meeting minutes might show discussions (or lack thereof) about the maintenance issue, which could be telling.

• • Expert Opinions/Estimates: In some cases, it might help to get a professional opinion. For example, if the HOA is neglecting a retention pond and you’re worried about mosquito breeding or property damage, you could ask a landscaper or environmental expert to inspect and give a statement on the condition. Or if a structure is unsafe, a contractor’s estimate to fix it (noting how serious the damage is) can underscore the urgency. While you likely don’t want to spend much of your own money on this, a simple inspection or estimate could be worthwhile evidence.

• • Remain Reasonable and Rule-Abiding: An underrated part of strengthening your case is showing that you are the reasonable party. That means you continue to pay your dues (as discussed, don’t withhold them), you follow the HOA rules yourself, and you approach the situation calmly, politely, and through proper channels. If the dispute becomes heated, avoid personal attacks or doing anything that violates the HOA rules out of spite. By staying above board, you make it clear that you’re simply a responsible homeowner seeking a fair outcome.

All of this preparation can pay off significantly. If you end up meeting with an attorney, you can walk in with a “thick file” of evidence ready to go. That allows the attorney to more quickly understand the situation and formulate a strategy. If you go to court or mediation, you’ll be able to back up your claims with solid proof. And even in dealing with the HOA informally, mentioning that you have documentation and records may make them take you more seriously.

Wilmington HOA Legal Issues: Call Attorney Bradley Coxe

HOAs are meant to enhance and protect our communities, maintaining the common areas we all share. When an HOA fails in this duty, homeowners in North Carolina are not entirely powerless. The key is to understand both your community’s rules and state law, then take informed, strategic action. Start by knowing your rights under your HOA’s governing documents and the North Carolina Planned Community Act, and by clearly communicating the issues to your HOA board

In many if not most instances, issues can be resolved through persistent but cooperative efforts – a letter from a lawyer, a board meeting discussion, or even a change in HOA leadership at the next election.

If those efforts don’t yield meaninful results, remember that the law may provide options on the side of homeowners who simply want what they paid for – a well-maintained neighborhood. Whether through an injunction forcing the HOA’s hand or other legal remedies, you may be able to hold an HOA accountable for serious neglect. Just proceed cautiously, because legal action is a big step and every case is unique in its facts.

Finally, don’t let frustration lead you to risky moves like withholding dues or violating rules in protest – that can do more harm than good. Instead, follow the process and gather support from fellow neighbors.

Key takeaway: You have the right to live in a community where the common areas are cared for as promised. If your HOA in Wilmington, North Carolina isn’t upholding its end of the bargain, you may have options – from polite pressure to legal proceedings – to help ensure your neighborhood remains a place you’re proud to call home. If you find yourself facing this kind of HOA struggle and need guidance, give us a ring at the Law Office of Bradley Coxe. It would be an honor to help you evaluate the situation and chart the best course of action, whether it’s a friendly nudge or a firm legal demand. Remember, you’re not alone – we help homeowners navigate Homeowners Association issues. With the right approach, there may be a solution that gets those common areas back in shape and preserves the value and enjoyment of your community. Call Bradley Coxe now to schedule a consultation: 910-834-8400