Many Governing Documents, including those of pre-1999 planned communities, include provisions authorizing the association to grant easements over common elements to utility companies or municipalities with or without some level of member approval, but do not authorize the board or the association to grant easements over common elements to any other party. The Act addresses this issue in N.C. Gen. Stat. § 47F-3-102(9), which provides that one of the powers of an association is the power to "grant easements, leases, licenses, and concessions through or over the common elements." Unfortunately, this provision of the Act does not apply to pre-1999 planned communities.

The COA noted that a 2003 NC SCT case, Wise v. Harrington Grove Community Association, indicating otherwise was superseded by legislative change in 2004. That change, to N.C. Gen. Stat. sec. 47F-3-102 of NC's Planned Community Act, made clear that unless HOA documents or declarations expressly block the HOA from assessing fines, an HOA may impose them. Here, all of the respondent's violations for which she was fined occurred after 2004, after the legislative change, and therefore the HOA had the power to impose the fines -- and file a claim of lien and foreclose when those fines went unpaid.