Rules conflict with CC&R Parking provisions

I posted an earlier question about the board's efforts to amend the parking provisions and received some enlightening responses. It has forced me to dig deeper, which means more questions. I really appreciate the feedback.

The board has adopted new parking rules without filing or voting. Basically, the new rules enable homeowners to park in their driveways overnight. Homeowners that don't have driveways must park in their garage or on the public streets within the project.

The Master Declaration use restrictions state:

No overnight parking of any vehicle shall be allowed on driveways, on any street or in any area of the project, except by guests of an Owner which have obtained a guest pass issued by the Association…

Parking and other activities on the public streets within the project shall be in accordance with all laws, statues and ordinances of the applicable Governmental Agencies.

Questions:
1. The adoption of rules that permit parking on the driveway is in direct conflict with the CC&R provision prohibiting parking in the driveway. Could there be another section of the CC&R that would provide for the board to adopt a rule in direct conflict with a provision? I have checked the bylaws which specifically state that the board cannot use rules to amend the Master Declarant. Also, I have verified that it is the "duty" of the board to enforce the provision. Am I missing anything?

2. The board is permitting parking on the public streets in the project. I contend that the clause "in any area of the project" prohibits the owners from parking on the public streets, regardless of the city's permission. I basing my contention on the fact that the Master Declaration is an agreement between the owner and associations, so even though the city allows for parking, the provisions specifically exclude parking overnight anywhere. Agree/disagree?

3. Finally, the new rules provide for towing vehicles after the third ticket. The towing of vehicles is not addressed in the Master Declaration. Assessments (fines) are detailed in the Master Declaration for parking offenders. Can the Board create a rule that allows them to tow vehicles, if it is not specifically addressed in the Master Declaration?

Appreciate your help

Gary

The Board does not have the authority to waive anything specified within the CC&Rs. If the Board adopts a rule that is in conflict with the CC&R's that rule is unenforceable. However, until someone challenges the rule (perhaps through the courts), it is likely that the rule would exist and be followed.

NOTE: The rule you describe is allowing something to happen vs. prohibiting the action. The same end result could still occur even if the rule was challenged in court and a judge ruled it was invalid. This is because, as Larry pointed out, the Board has discretion on what covenants/rules to enforce. However, if they enforce a rule, they must do so uniformly.

You may be wondering why I said that the Board has discretion in enforcement. This is because you have that same discretion. The CC&Rs give both members and the Association the authority to enforce the CC&Rs. Having the authority and exercising that authority are two different things. Just as the CC&Rs do not require you to enforce the covenants on your neighbor, they also do not require the Association to enforce the covenants. They have the authority and the option just as you and the other owners do.


You are correct. Since the owners entered into a contract with the other owners, the owners are to comply with that contract. However, as Larry said and I previously pointed out, no entity: you, other owners or the Association, is required to enforce that provision of the contract. All of you have the authority if you decide to exercise it, but it's your decision to use that authority or not.


Typically, yes.

The board typically has the full authority to adopt rules and regulations in regard to common areas. If the towing is from the common areas, then the Board has the authority to adopt such a rule. Prior to towing, the Board must also comply with any county/city towing laws or the Association may become responsible for the bills until they comply.

Gary

You said:

Master Declaration use restrictions state:
No overnight parking of any vehicle shall be allowed on driveways, on any street or in any area of the project, except by guests of an Owner which have obtained a guest pass issued by the Association…

Are you saying the master said an owner either parked in their garage or nowhere in the project?

It also says guests could park in driveways and/or on the streets but the owners could not. Am I right?

I have never heard of one not being allowed to park in their own driveway, be it overnight or not.

My initial thinking is that restriction is foolish if not out right stupid. Guests can do as they wish while we owners are restricted.....I love it.....LOL

With this information, it sounds like the Board knows the rules and attempted to change them properly (by amending the CC&Rs). Unfortunately, they chose to write a rule that is now in conflict with the CC&Rs. To achieve what they wanted, they should have just chosen not to enforce that covenant and let a future board deal with the issues if they chose to enforce.

Gary, the options you have are simple. Challenge the rule (which, as I pointed out earlier, won't really change the parking situation) or gather like minded people together and get them elected to the board so you can enforce that covenant and remove the rule that is in conflict.


Actually, since your in CA, political signs are permitted. This is because (similar to your rule being in conflict with the CC&Rs) that covenant is in conflict with California laws when it comes to political signs.

See: CA Civil Code §1353.6. Right to Display Signs, Posters, Flags and Banners

The above issues are an excellent illustration as to why it's important, not only for board members but the members themselves, to read all applicable documents and laws that affect an Association.

Tim (I think it was him) had the best suggestion and that was for the BOD to treat the parking issue with benign neglect.

I am trying to understand how the board can treat the parking restriction with benign neglect. Wouldn't they have to allow parking on the driveway and the street? In our case, they want the parking off the street, but permissible in the driveway. If they ignore the driveway parking and restricted street parking, isn't that scenario the definition of selective enforcement?

To pass rules, there a certain procedure that the board has to follow in California. They had to give a written proposal at least 30-days before it is voted on by the board and they are required to allow members to speak about the proposal at an open meeting. If these have not been done, it is open to challenge ( Civil Code §1357.130(a))

Civil Code §1357.110 states that a rule must be in writing and within the board's authority and consistent with governing law and the association's CC&R.

The board doesn't have the authority to govern public streets because members as well as non-members are under city/county laws there. If the HOA towed a car there, the member (or worse) a non-member could sue.

The board also doesn't have the authority to change the CC&R. It can be done, according to your own CC&R and sometimes it requires going before the city (as it did with our HOA).

If your board is looking to stretch their authority over public streets and actually passed rules for that, I think your board needs to take an educational course and you might want to look at other rules they have made.

I would like to make sure that I understand how the county laws versus the CC&Rs could be applied. First, the Master Declaration states that there will be no parking overnight within the "project." However, you're suggesting that the Master Declaration parking provision cannot be applied to the public streets (lacking an agreement with the county) that are within the project. Thus, the board could direct owners on the private streets to park on the public streets?

BTW: This scenario is exactly what is happening. The new parking rule allows parking on driveways overnight. Owners that do not have driveways and cannot park in their garages are parking on the project's public streets. The project is an island. There are 5 streets. 4 of the streets are private. However, there is a small condo complex on the end of the island, so the street to the condo complex is public. Unfortunately, it has become a mess for the project's homeowners living on the public street.

In my initial post, I raised the concept of owner-Association relationship. The relationship has nothing to do with public/private streets. Therefore, the association could and should prevent the homeowners on private streets from parking on the public streets. While the Association couldn't tow the vehicle, it has other tools to use as a deterrent.

Comments? Really appreciate the feedback. It has been very valuable.

All laws and county regulations typically supersede any governing document. However some of those same laws/regs defer control to an Association governing document. Therefore, to understand how State laws, county codes and city ordinances apply vs. your Associations governing documents you must read the applicable law/code/ordinance.

If you fail to read the applicable ordinance and governing document (in it's entirety) you may easily miss something and walk away with an incorrect understanding of the relationship.

Concerning parking on public streets they could be applied in any of the following ways:

1) Have full control over your governing documents
2) Only apply to non-members
3) Have little or no control over your governing documents.

Example 1:

Laws say all may park on the public street but is silent on Associations authority.

Members entered into contract giving up that right and agree not to park on the public street.

Members are responsible for their guests action, therefore if a guest of a member parks on the public street the member could be fined for not forcing the guest to comply with the same rule the member agreed to.

Example 2:

Laws say all may park on public street and that Associations may not restrict this right.

Even though members entered into contract giving up that right, the law specifies that that section of the contract is unenforceable (effectively null and void) therefore, members may park on the public street.

Members are responsible for their guests action, but the law specified that it superseded the Associations authority on restricting public streets, therefore, the guest may park on the public street.

As I previously posted, you need to read both the applicable laws and your governing documents to determine how they interact with each other. We can not do that for you.


As I said before, you need to read the laws and the governing documents to be sure.

Actually, the Board may be able to just specify no overnight parking on the private streets. Then let the owner of the vehicle figure out where to park it. If the public streets are the only alternative, then yes, such wording would effectively result in members must park on the public streets.


I believe, the options for those members who live on the public streets have been provided before.

It's up to you to decide which option you want to utilize.


That is one point of view.

Based on your Board's actions, I suspect that members of the Board and likely some of the membership have a different view.

Again, the options available are:

1) Live with it

2) Complain about it until people stop listening

3) Gather support and call a special meeting to overturn the rule as authorized in CA law

4) Gather support and recall the board, replacing them with individuals who will repeal the rule.

5) Gather support and vote the board out at the next election, replacing them with individuals who will repeal the rule.

6) Consult with an attorney and determine your legal options

7) Move

The decision of which option you desire to utilize is yours.

The HOA cannot enforce the HOA rules on HOA members regarding public street parking. The HOA has no jurisdiction over member behavior outside of the HOA. This is the same for any non-profit.

The very thought that they could makes me worry about what other rules you might have.

JM, it actually depends on the State statutes. As an example, AZ is in the process of enacting laws that are not silent and removes the HOA's authority over it's members and the use of public streets.

See:
Legislators want fewer HOA rules on streets a march 2012 article in the Arizona Republic.
Can an HOA Regulate Street Parking? article by an AZ HOA attorney
Failure of latest effort to regulate HOA parking restrictions worries some homeowners AZ Radio story dated May 9, 2012

Personally, I agree with you that the HOA should have zero jursidiction over public streets. Unfortunately, (as I understand it - and I am not an attorney), the HOA can have jurisdiction if and only if you are contractually give the Association this authority over you (i.e. signing away your right to use the public street as you desire). The CC&Rs are the contract.


I agree.

I have learned a whole lot since I've lived in my Association (my first HOA). Now armed with this knowledge, and in the process of looking for a home to retire to, I read all paperwork and governing documents prior to signing. This has actually had me walk away from a couple of properties we liked a lot.

I am more concerned for those who enter into these agreements with their eyes wide shut and then don't understand what they got into.

Gary,

When I explored the idea of our HOA "managing" the parking on the public streets within our HOA the Town "informally" told me that the only possibility was for us to take over street maintenance, enforcement, easement and right of way issues, and so on. Their "unofficial" position was that the Town Council would not support it.

In addition, when I proposed this idea to our Board I thought they were all immediately going into cardiac arrest. Just the concept of doing it totally blew them away. They think I am a nut case and have never heard of the unspoken, unwritten, and well understood golden rule of all governmental agencies, including ours, of " MAKE NO WAVES".

If you have details about where it has been done I would appreciate it if you could share the info.

Thanks,

Paul T