Passenger Cars & Parking Rules in CC&R's

Started by KathyE1 • 22 replies • 1980 views

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KathyE1 (Massachusetts)
Posts: 11

Posted:

Hello,
this is the first time that I am posting on this site.

I have lived in a condo asssociation in Massachusetts for 6 years. I own it outright and enjoy the peacefulness of our community.

Our Master deed which was written in 1973 states "NO trucks or commercial vehicles are allowed on the property" and that owners are only allowed to drive "passenger CARS".

In 1973 Pick up trucks were considered commercial vehicles however since 1979 pick up trucks have become a norm in society and are now sold as passenger vehicles.

Our condo association does not allow owners to have Pick up trucks however it's not stated in the Master Deed.

The rules and regulations book that I was given in 2001 when I purchased my unit stated that "Only Passenger CARS" are allowed here and that everyone including owners /guests / visitors had to obey these rules.

When I moved in I had a sportscar and an SUV and I saw countless Vans, Pick-up trucks, SUV's etc. Additionally a board member's son visited for 3 months in the summer time with a commerical van and now visits with a Commerical Pick up truck.
In 2004 when this board member was elected to the board changed the parking rule to state that Owner / Occupants cannot drive trucks or commercial vehicles (such as pick up trucks and motorcycles) on the premises thus allowing visitors to come here with whatever they drive (pick up trucks, commercial vehicles etc).
In 2004 I got engaged to a man with a pick up truck. NON commercial, no lettering. on a holiday weekend he visited as did the board members son but my guest was ticketed. Hers was not.
I objected and took photos of the other members guest with his truck and they said they'd look into the rule.
The board then instead of changing the rule or updating it to today's living standards, they went ahead to clarify what an occupant was and stated that " if a guest was here for more than 20 days in a 60 day period then he is considered an "Occupant" and therefore had to abide by the NO Pick up truck rule.
Therefore, her guest was exempt but mine was not since he was here every weekend.

Since then we got married, and have had numerous run-ins with the board over his vehicle.
My husband is an A/V consultant with an engineering degree and uses his vehicle for work and as his personal passenger vehicle. He has always owned a pick up truck and he's tall so he dislikes drivig in my small BMW.

The unit owners are split on this topic. The Board members are adament about our vehicle being gone and We accommodated them an entire year by borrowing a family members SUV (Jeep) and also parked our pick up truck on the street out side of the property all winter long while they promised that they would have a community vote in the annual board meeting(which they then decided against and never went through with voting on the topic).
We are now being fined over $13,000.00 for driving the JEEP and for having a pick up truck even though we're parking it on the street. We have hired an attorney and now filed a law suit.

When we asked about the other visitors and board members who are here with their trucks (SUV's, Pick up trucks, MInivans etc)... and the board said that they cannot regulate what guests drive on the property. Guests are allowed to park here overnight with pick up trucks, but owners are not.

I was wondering what percentage of condominiums have changed their rules to allow passenger trucks such as: Pick up trucks, SUV's, Minivans etc.. to park on their property where they were not allowed before....

We are also in realestate and own a condominium complex of 3 units. We are in the process of putting together rules as we just sold one and are in the process of renting two more so I am eager to hear feedback from people as we do not want to make unreasonable rules for others to live by.

Thank you for your feedback.
K.

MikeS1
Posts: 668

Posted:

Kathy, I know that you're going to get lots of feedback on this one. This site is full of postings that address this problem. I like in a townhome community and we just had our attorney create a parking resolution that defines commercial vehicle, but where do you draw the line. Like you say, there are tons or Escalades, Navigators, Humvees, and Suburbans that really aren't commercial in nature, but they are very wide and it's very difficult to park next to these large vehicles. How do they define a commercial vehicle?

In order to have a parking policy, the rules have to be easy to understand and easy to enforce. This 20 day rules sounds like a nightmare. How do you enforce this? Do you have parking permits? No motorcyles? What's up that?

Do a search on this site for commercial and parking. There's tons on information here.

BrianB (California)
Posts: 2,820

Posted:

i would be very suprised if the board in 2004 changed the rules and regs legally. Changing CC&R's is difficult, and typically, boards just enact things and claim they are "laws", while legally, they had neither the votes, power, or authority to do so. I would first look at your by-laws, and see what exactly MUST happen to change a rule. then check to see that this is exactly what the board did in 2004. if they didn't, then the original rules still apply.. which doesn't help you, but does mean they must apply that rule to everyone.

MikeS1
Posts: 668

Posted:

I agree with Brian... why should your guest be exempt from this rule? For a while, our board tried to issue guest passes that would exempt the guests from certain restrictions on parking in the visitor spaces, but it was very difficult to define "guests", verify whether or not they were really a guest, so the system was subject to abuses. Some bylaws do say that the board has the authority to say how the visitor spaces are used since they are common areas, but this rule just wasn't thought out very well.

KathyE1 (Massachusetts)
Posts: 11

Posted:

Thank you very much for your quick responses.
Brian,
our Rules and Regulations are changed by the majority of the vote of the board and they do not have to get the community to vote on the changes. They just change a and distribute the packet. They tell us that you need the votes of the community only if you are changing the Master deed documents not the Rules & REgulations (CC&R's). I'll have to check our master deed to see what it states on that.

My husbands vehicle is a NON-Commercial Ford F-150 pick up truck. We are in the process of renovating our unit and he is doing most of the work (tiling, painting, cabinetry, moulding etc..) and so we use his truck so we don't spend money on a rental. He parks on the street at night outside of the property and walks up 1/4 of a mile to our condo. During the day when he is using it for picking up material etc from manufacturers etc... he has it on the property in our deeded spot.
NOW:
The condo association last week sent us a letter requesting info on how long the vehicle will be on the property during the day, how much time our renovation will take so they can grant us permission to be here during the day.... In the mean time, visitors, contractors are coming and going daily in pick up trucks, vans etc.. without permission and we're just fed up with it now.
Our attorney tells us that the condo board is now trying to throw our law suit out (they filed a motion to dismiss) so we're now fighting to keep it in the courts.
IN the mean time,
during the holidays one board members visitor was here with the commercial pick up truck for 3 nights and was never ticketed because as they say it is allowed. We have photos and videos of all trucks and SUV that come in and out of here... we now spend most of our time looking out our widow with a camera in hand instead of going about our business....

Patience is a virtue which I lack and I'm trying really really hard to get!
k

BrianB (California)
Posts: 2,820

Posted:

kathy, if what you say is true, that your covenants can be changed by a simple vote of the board, with no owner action, I would advise selling and moving ASAP.

That's no way to own a home: Imagine, you buy a home, agreeing to all the rules in the CC&R's. Then, 4 people, elected to the board, decide to make a rule that no children are allowed. Or, that no dogs, cats, fish, or birds are allowed. Or no cars colored red are allowed. SO they just change the contract?

No way. I suspect your board is incorrect, and that they cannot change the covenants as easily as they claim. Typically, boards can interpret rules, and perhaps make some minor changes (moving a time for trash cans to be off hte street, etc.), but major changes to the way of life must be done with the vote/action of the owners.

read your bylaws carefully.

KathyE1 (Massachusetts)
Posts: 11

Posted:

Unfortunately Brian,
we cannot move and at this point since we filed the law suit we cannot sell the vehicle or we will lose standing with the courts.

We have spent approximately $23,000 with the attorney thus far and we have paid the association $6,300. in fines under protest in order to file the law suit.

We will re-read our Master Deed to see what it states about changing the by-laws/Rules & Regulations.

Thanks for that bit of info regarding the association changing the contract after I purchased.
In court they are demanding that we should pay because I signed the contract (in 2001). But the contract was changed when they changed the rules to allow guests to drive and park here overnight with whatever they choose to drive (including pick up trucks etc) in 2004.
It does not help us because my husband owns the pick up truck , however prior to filing the law suit we offered them a solution of banning all pick up trucks across the board (and we would sell our truck) or to allow pick up trucks with restrictions. The board refused to settle period!...
So we filed.

We feel that fair is fair and if they're going to allow pick up trucks in here daily visiting then there should be no reason why an owner cannot have one here at night parked in their deeded spot.

The board claimed in court that they are a dangerer to the community and that they are aesthetically unpleasing.
That's their sole reason for not wanting them here.
k

KathyE1 (Massachusetts)
Posts: 11

Posted:

Brian and company:
We just re-read our By-Laws and found out that there is a bylaw which state:
"The board of trustees may at any time and from time to time adopt, ammend and rescind administrative rules and regulations governing the details of the operation and use of the common areas and facilities and such restrictions on and requirements respecting the use and maintenance of the units and the use of the common areas and facilities as are consistent with provisionso of the Master deed and are designed to prevent unreasonable interference with the use by the unit owners of their units and of the common areas and facilities".

We will be asking our attorney how legal this is to make and change rules to include or exclude certain unit owners.

k

DanaB1 (Connecticut)
Posts: 319

Posted:

K, this is the second line of your first post - "I own it outright and enjoy the peacefulness of our community."

What do you do for work if you consider what you've explained to us at your condo to be peaceful?

Is your attorney a specialist in condo law? It seems hard to believe that a (good?) condo lawyer would have told you to go to court if they knew it was a loser or if it would drag into the big $$$$$.

I take it you have no garage spaces?

Dana

KathyE1 (Massachusetts)
Posts: 11

Posted:

Dana,
I'm in upper management (at least I was until a year ago when my husband asked me to quit my job and help him out with his A/V Consulting business and our real estate business). Now I'm in management and work from home 70% of the time.

Until I got married I had no problems here at our association. I travelled alot with work all across New England: NY, CT, VT, ME, MA etc.. and during the summer enjoyed hanging out with neighbors by the pool, at the weekly cookouts etc and I still do.

In my 6 yrs here I have seen a different practice than what the rules state with regard to the parking rule. Since we became self managed in 2003, board members have gotten swollen heads with the power they now have over unit owners and they make and change rules to benefit themselves while excluding others. The same board members run year after year and they only leave when they retire. If we did not have this problem with the truck I would have run this year in order to make a difference, but with the law suit i felt it was not the right time to run for the board.

60% of the community here are retirees. The other 40% is 30's to 60's and not retired. 40% of the community is gone in the winter time to Florida.

The reason we filed our lawsuit is that we are being fined outrageous amounts of money for times and dates that our vehicle was not on the property, when we were driving an SUV and when our vehicle was parked outside of the property on a public street. OUr attorney is not a specialist in Condo law and we interviewed 10 other attorneys who would not take our case.
We are not unreasonable people. for an entire year we abided by their rule and borrowed someone elses SUV and yet we are still being fined for the pick up truck. We even tried to settle this, but they did not want to hear it. they told us and our attorney that they would take this rule up to a vote in the annual meeting and they changed their minds prior to the meeting and did not bring it up at all. As I mentioned, prior to filing our law suit we attempted to settle with they but they would not hear of it.

As I mentioned,
guests are allowed to park here with pick up trucks daily and at night. Owners are not. I do understand about Commercial vehicles being excluded but regular passenger vehicles not being allowed to park here at night when they're in and out of here as guests daily is unreasonable.

It is still a nice community with that one exception: that they are selectively enforcing their rule and we feel that it is not fair.
k

BrianB (California)
Posts: 2,820

Posted:

"The board of trustees may at any time and from time to time adopt, ammend and rescind administrative rules and regulations governing the details of the operation and use of the common areas and facilities and such restrictions on and requirements respecting the use and maintenance of the units and the use of the common areas and facilities as are consistent with provisionso of the Master deed and are designed to prevent unreasonable interference with the use by the unit owners of their units and of the common areas and facilities".

That rule has nothing to do with any ability to alter the covenants with regards to parking.

HaroldS (Arizona)
Posts: 906

Posted:

Kathy - good luck on your lawsuit. It sure sounds like selective enforcement. They seem to be obsessed with your vehicles while ignoring others. Or writing rules that only affect you. The documentation you're doing should be helpful.
Do their rules require all contractors to submit a schedule of projected time to finish a job, and if so, do they enforce it with others?
I agree also: it would be rare for your documents to give such power to the board. To allow a board to make major changes at will would invite chaos. Your attorney should be reading your documents word by word, as well as past board minutes and hopefully is someone familiar with HOA law. Harold

MikeS1
Posts: 668

Posted:

Are you sure that these spaces are deeded as opposed to assigned common areas. We haven't seen to many Condos' with deeded spaces lately. If the spaces are deeded, then are the spaces really "common" area and does the previously mentioned CCR clause apply to these deeded spaces since they are not Common area. Sounds like you need a good, specialize HOA attorney.

KathyE1 (Massachusetts)
Posts: 11

Posted:

MIke,
here is how it is quoted in the master deed:
"Each unit shall have appurtenant thereto the exclusive rights and easements, exercisable suject to and in accordance with the master deed and the provisions of the by-laws of the condominium trust and the rules and regulations promulgated pursuant thereto, to use (A) the two parking spaces (as designated on exhibit A) with the number of such unit and the numbers of hte parkign spaces shown on sheet 1 of the condo plans, and (B) the attic storage space designated with the numbe rof such unit on the attick plan of hte bldg in which the unit is located."

when I purchased the unit it was sold to me with 2 deeded spots as per my sale documents.

The rules & regulations state that the parking spaces are limited common areas as they are assigned to each unit.

k

MikeS1
Posts: 668

Posted:

It's time for a good HOA attorney here, but I'm puzzled as to how the spaces can be "deeded" and listed as a limited common element at the same time. I know that where spaces are deeded, they either are listed as part of the deed or there is a separate deed for the spaces. The last two lines in your last post seem to be in conflict with each other. I'll be interested to see how this turns out. Good luck.

KathyE1 (Massachusetts)
Posts: 11

Posted:

Mike,
we just checked our Quidclaim Deed that is recorded with the registry of deeds.
The parking spaces are listed in there as deeded to me.
kathy

KathyE1 (Massachusetts)
Posts: 11

Posted:

Does anyone know of a good HOA attorney in Massachusetts?
k

MikeS1
Posts: 668

Posted:

Some of the larger HOA's often have attorneys on retainers that specialize in HOA's. You might want to contact some of the larger property management companies, get some referrals from them. They usually are a tight-knit group. Then you might also want to try the Massachussetts Bar Association via the web.

DanaB1 (Connecticut)
Posts: 319

Posted:

Kathy,

The questions you bring up your attorney should have easily answered way before now. Just what has this guy/gal done for you for the "thousands" that you've dished out????????????????

Let me ask on another forum for a good Mass. lawyer.

Dana

RogerB (Colorado)
Posts: 5,067

Posted:

Kathy, from what you have stated you do not own the parking spaces. Just because the parking spaces are listed on a Quit Claim deed does not mean you own them. A Quit Claim deed only gives ownership to what the seller owns. The seller may have listed it thinking they own it; but if they did not own it then you do not own it. This is an example of why one should get a warranty deed with title insurance. It's too bad you didn't utilize a knowledgeable real estate broker.

Let me say one more time that I think every management company should have a real estate broker. We would have helped your Board resolve this problem quickly with you.

KathyE1 (Massachusetts)
Posts: 11

Posted:

Roger,
I found this condo on my own and the realtor who was selling the unit was working with a condo owner & board member at the time.

Not only did I not get a copy of the master deed but they gave me the rule book at closing. but since I didn't own a pick up truck and only had an SUV and a sports car (I was making good money back then and spending it on cars since I was still single)...that rule did not apply to me.

As far as what they say and what the Master deed states as far as deeded parking spots, the board's realtor is listing them in their mls as deeded parking spots. A board member's dad is selling most of the units here that go up for sale.

So now I'm a bit confused ?!?!?!?!
k

KathyE1 (Massachusetts)
Posts: 11

Posted:

Posted By DanaB1 on 01/29/2007 7:05 AM

Kathy,

The questions you bring up your attorney should have easily answered way before now. Just what has this guy/gal done for you for the "thousands" that you've dished out????????????????

Let me ask on another forum for a good Mass. lawyer.

Dana

Dana,
We finally found an attorney that would take our case after searching for months. She specializes in litigation and the partner that is put on our case is a real estate attorney.

our attorney is playing by the book however the boards attorney is not. They are at the point now that they're trying to throw our case out and have filed for a motion to dismiss. That's the point we're at now.. fighting to keep it in the courts so that we can bring forth the proof of selective enforcement and the lies that this board has stated under oath.

we also tried filing a TRO (which we knew was a long shot) to be able to keep our vehicle on the property until the law suit was over but we did not win this.

The boards attorney kept bringing up to the judge that if the judge allows this to go through then condo board members will lose all power against other unit owners who choose to disobey a rule.
I'm hoping that playing by the book and fighting clean will bring us justice in the end.
k.

DanaB1 (Connecticut)
Posts: 319

Posted:

Kathy,

I don't mean to sound like I'm picking on you, (which I probably do)but I just hate to see you spending all your money on a losing battle. Believe me, there are many associations (ie boards) that should get sued but don't. And if not sued, they should at least be given "extreme wedgies". (Sorry, I'm getting over the flu and I think I took too much NyQuil.)

The fact that it took you months to find an attorney that would even take your case throws up a red flag to me. The fact that your lawyer is a real estate attorney doesn't impress me. Does she specialize in condo law?

And no offense, but you don't want a boyscout (excuse me, girlscout) for a lawyer. You need someone that fights dirtier than the association lawyer; a real pit bull. Grrrrrrrrrrhhhhhhhhhhhhh. Obviously, if their lawyer is winning, the judge doesn't go by the rules either. In Law, as in Medicine, there seems to be many shades of gray.

My only advice is to decide if it might be in your best interest to cut and run. You'r a real estate investor, sell and invest in a better community (after you read their declaration or sell the truck).

Your in a new marriage, you should be enjoying it.

Sincerely,

Dana

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