Unreasonable covenant

I am looking for help with case law. I have posted here many time and really appreciate the information that has been provided. Briefly, here is my question.

I belong to an association that is made up of 2 public streets and 10 or more private streets. The Association is 7 years old, and during that time has failed to enforce its parking restrictions. The parking restriction prevent parking on the private streets or driveways within the project.

A law suit is being filed to force the Association to enforce its use restrictions. Efforts to amend the use restrictions failed. There are approximately 140 vehicles that cannot park in the garage and will have to park on public streets. The closest streets are the two public streets adjacent to the project. It is expected that those two public streets will become lined with parked vehicles.

I purchased a house on the public street, so that I could park my pickup truck on the street. I read the CC&Rs when I purchased in 2008, and realized that buying on the private streets would be an issue. However, since the board has never enforced the parking restrictions, many families purchased or moved-in with more vehicles than parking spaces.

I believe that the board's lack of enforcement has resulted in my street being lined with vehicles. My property value is impacted; as is the enjoyment and use of my property. I want to sue the board for failing to enforce the CC&Rs (which I have case law); and, for their actions causing the congestion on my street (I need case law).

I have looked at Landen which touches on the issue; however, I need more info.

Thank you

While I understand your frustrations, I think it could be argued that these homeowners are doing exactly what you are doing - parking on a public street - with one exception - their property is not adjacent to the street they park on.

I would see you as having standing if you lived on one of the private streets, the HOA did not enforce their rules, and the private street was lined with cars. Based on what you posted, the HOA has rules that sound enforced - no parking on private roads. The homeowners are following those rules, parking on the unregulated public roads. You bought your house. With intentions to park on the public road and maybe those on the private roads did the same. You could say that was the risk you took when purchasing your property.

I'd say check your local codes to see if their is anything your government can handle.

Tim: Thank you for your response.

We have gone done every path to resolve the issues. I won't bore you with the details, but we have tried amendments, arbitration, and creating a special parking district. Now, we are going to court. The court case is very straight forward. We are suing to have the Association enforce the CC&Rs, as written. It is anticipated that if the members are forced to comply with the use restrictions; then, they will be more than happy to pursue an amendment.

The problem with this strategy is the two public streets. In order to make this strategy work, we need to prevent the members from parking on the public streets that are adjacent to the project. Our basic argument is, If the purpose of the parking enforcement is to remove visual blight from the Association, how does moving it to the Association's public streets accomplish the goal? How is it fair?

Nahrstedt v. Lakeside Village Condominium Assn. (1994) touches on the issue. Nahrstedt mentions that its enforcement procedures must be fair and applied uniformly. In order to own my property, I am forced to join the Association. Therefore, I would expect the Association to enforce the CC&Rs in such a way that it does not impose a hardship on me.

It would be really nice to find case law that is specific to my point.

Good luck on retirement. Appreciate your feedback.

So are the private streets filled up with parked cars or is your argument that the HOA is not enforcing covenants on the public street and people are just parking their cars everywhere.

I really don't see any way for the HOA to govern what is not theirs, such as behavior on public property. How can a covenant and restriction on someone's home apply to another property (public street) with no such covenant?

And if you are seeking equal enforcement, then not only will the overflow cars be banned from parking on your street but so would you.

Unless I am misunderstanding your argument, I don't think you have a successful case.

What exactly is the covenant the HOA is not enforcing? Details are important!

I just want to point out that the home's value has not decreased nor increased. The problem has NOTHING to do with home values. It is effecting the home's ATTRACTIVENESS to buyers NOT it's actual value. A home's value is based on other factors such as what other homes sale/foreclosed for in a few mile radius of similar size/features. Mostly location, size, features, and similar home sales is what effects Home Values. Don't confuse attractiveness to home value. Your argument on that will not hold up in court unless you prove it by actually selling your home. Which would make you no longer a HOA member and valid court case.

I think the lawsuit is the wrong direction to go in. There are other options in your documents to remedy this. Can not help it if they do or do not work. It happens. Plus the public streets are not always a "free for all". To handle that issue, one goes to their city NOT HOA to resolve that issue. We had them put in red curbs to indicate no parking on our public streets. The HOA can do the same thing on their private streets if they wanted to do it as well if they paint the curbs and put in the rules what that meant.

Lawsuits tend to make things worse in some cases. It causes a vicious cycle. I always advise that suing your HOA is suing yourself and your neighbors. So if your going to sue, then get a majority of your neighbors to follow suit with you. However, if you did have enough neighbors to follow suit, then you have enough members to change/amend the rules you want enforced without ever going to court.

Thanks Susan. I just want make sure it is understood that even if you take your HOA to small claims as yourself, your HOA has to bring a lawyer. A HOA typically has to be represented by a lawyer as it is a corporation. That HOA lawyer is NOT your lawyer but the HOA's. They repesent the HOA as a whole of which your a member. So even small claims has cost ramifications on both ends.

Thank you for the responses. This board is always great. In answer to your questions:

1. The board has a "duty and obligation" to enforce the CC&Rs.
2. Regarding the home values, in the last year homes sold on the public street sold for over $100,000.00 less than private streets. Plus, the realtor has the buyer sign a disclosure document over the parking issues.
3. Small Claims is not an option.
4. There are no written decisions in CA that address parking on public streets. In other states, the courts have ruled that the Association could enforce its CC&Rs on public streets, IF the CC&Rs explicitly provide for enforcement on public streets. Our CC&Rs do NOT give the board the authority to enforce on public streets.

Regarding amending the CC&Rs, there is an issue with reaching a quorum for this association. An amendment requires 2/3 affirmative vote to amend the Master Document, which is the document that covers this issue. However, our association has four different CC&Rs. Members that are covered under the 3 sub-CC&Rs have their own parking restrictions and don't care what is in the Master Documents. Therefore, those members don't bother voting. As a result, we cannot get enough affirmative votes to amend.

Again, my immediate goal is to identify case law to try to prevent the association members from parking on the public streets when the board begins enforcing the parking restrictions. My argument is:

First, I cannot own my house without belonging to the Association. The house is outside the security gates for the community, but it is subject to the same CC&Rs. One of the features of this house is the benefit of being able to park on the street in front of my house. And, it was the primary reason for buying outside of the security gates.

Second, members that purchased inside of the gates receive many benefits that I don't receive, but they are prohibited from parking outside their garage at any time, except for very short periods.

Third, since this is an island there isn't any other vehicles that park on either the public or private streets. The vehicles belong to members or are permitted guests.

The Association was formed in 2006. During that time, the board has NEVER enforced parking in garages for members with driveways. However, because the members on the private streets are trying to stop an electrician from legally parking his commercial vehicle on the public street, all hell has broken loose. The electrician is suing to recover thousands of dollars in fines. His argument is the board must follow the CC&Rs as written.

All of the members on the public street want to join the lawsuit if we can find a way to force the board to create rules & regulations preventing parking on the public streets adjacent to the project.

The argument is members on the private streets would not have purchased more vehicles than garage space provided had the board done its duty from 2006 until today.

Thus far, I have looked at the idea of uniform enforcement. Can the board enforce the CC&Rs for one group knowing that it will negatively impact another group?

Thanks

Susan,

You have so little faith in us. Many on here are very effective at doing research and have found many supporting cases addressing other issues in the past.

You are correct, this is not the place for legal advice.

However, the internet is has given access to many public documents including court rulings and opinion papers. Therefore, asking if anyone is aware of any cases related to the issue can often get results from someone who has spent the time doing the research.

I second what Tim is saying. There are very well informed people on this board. When I prepared for my IDR, a number of people provided case law from their states. Again, California lacks written decisions on parking issues. I am forced to research out of state decisions.

I appreciate any and all help.

Is it possible to collect proxies to reach quorum?

"Thanks Susan. I just want make sure it is understood that even if you take your HOA to small claims as yourself, your HOA has to bring a lawyer. A HOA typically has to be represented by a lawyer as it is a corporation. That HOA lawyer is NOT your lawyer but the HOA's. They repesent the HOA as a whole of which your a member. So even small claims has cost ramifications on both ends."

That may be true in Alabama where you live but not in all states. SCC is inexpensive compared to hourly attorney's fees. In Florida it is not uncommon for an association to take a homeowner to SCC for delinquent assessments for example, provided the debt is UNDER $5,000. Any officer of the the corporation can file the suit. Even a manager can represent the association provided the manager is a payroll employee of the association, not an employee of a management company acting as Agent.

I have heard of an HOA in California where the President represented the association when a lawsuit was filed in SCC by a homeowner for failure to hold annual meeting.

Again, from what I am reading from your posts, the restrictions prevent homeowners on private roads from parking in their driveway or on the street so they are parking their extra cars on public roads. You mention the lack of enforcement and people having more cars then garage space. It sounds as if the HOA done their job. It is not their business to regulate automobile ownership and those with extra vehicles are parking them where they are allowed (both legally and as permitted through C&Rs). In Brooklyn this was always a risk with living on a public street next to a private street.

My recommendations would be to save your money and avoid a legal fight and instead continue to push a parking amendment change. It may take a while to drum up support but it will definitely be cheaper then a lawsuit, and as others have pointed out here, without in-state case law to support your position the courts in your state are under no obligation to consider cases from other jurisdictions. They may or may not consider those cases relevant. Finding cases may help your claim but I feel that without any local examples you would be fighting an uphill battle.

Another possibility - you and your neighbors buy the street and ban parking for the gate-dwellers and push them off the island making it a parking paradise.

I missed this before posting my previous comments, but it changes little.

The statement about "the power and the duty" is in the bylaws and not the declaration. The association cannot create powers and duties for itself that are not in the declaration.

Larry: I may be mis-understanding what you are writing. I reviewed the Business Judgment Rule on Davis-Stirling.com. It seems to apply to liability of the board, when making decision about the CC&Rs. It doesn't say anything about using business judgement to decide if a restrictions will be enforced.

In fact, under Judicial Deference, the Supreme Court stated "the judicial deference rule does not apply where board decision was inconsistent with CC&R's and thus beyond board's authority] Business Judgment Rule http://www.davis-stirling.com/tabid/1547/Default.aspx#ixzz2jEUrsXeo

Our CC&Rs specifically state that there is no parking allowed on driveways or private streets. Yet, the HOA has allowed parking during the day and on driveways since the Association was formed. Periodically, they have enforced the no parking restriction on the private streets. However, the association is currently allowing parking anywhere.

I am struggling to understand how the HOA can apply business judgment and ignore the restriction, and/or limit its enforcement to specific vehicles or just the private streets.

I would appreciate more information.

Larry: thank you for the explanation. It really helps.

Gary,

I don't think the parking restrictions with regard to the garages is enforceable to begin with.
I am in Calif as well. My HOA had a rule that you had to park the maximum number of cars your garage was built to hold "before" you would be allowed to park cars overnight in your driveway.

We had a few busy bodies that made it their mission in life to harass numerous neighbors about their parking habits. Yes, in Calif it is customary for one to use the garage to store items since we have no basements that are found in many other parts of the country. With the mild climate, many people spend a great deal of time outdoors so where to they store their stuff?

In our HOA, these busy bodies files number of complaints against a number of the younger families who used their garages for storage instead of parking vehicles per the CC&R's

One of these victims sought out a lawyer who sent a strongly worded letter to the HOA informing them that as long as the garages were "attached" to the homes and part of the actual structure, then the HOA could not dictate or enforce any use restrictions on that garage.

Seems there was Federal case law a bunch of years ago (prior to 2000 from what I heard) where the supreme court ruled that an HOA could not dictate how you used the inside of your home. This evolved from a case in Texas or Florida that had a cat or indoor pets rule for stand alone homes in an HOA.Cat owner was fined for owning an indoor cat. This person took the case all the way to the Supreme court (from what I was told). The result: While the HOA can dictate the color of the house, that you have landscaping and window coverings, the HOA can not dictate how you use the inside of your home. The HOA (for stand alone single home HOA's) has no business whatsoever inside your home. Period!

Your HOA may not have been enforcing the parking restrictions because the HOA lawyer may very well have told them this is illegal. In that you can't force use of the inside of a dwelling, which in this case includes the attached garage. Laws trump HOA CC&R's, by-laws and rules. So, if the HOA was created in 2006 and put this in the CC&R's they may have done so incorrectly because of the supreme court ruling. (BTW - I do not know the actual case name - just that I remember reading the letter my neighbors sent the HOA from their attorney - sorry)

Given that the HOA can't dictate that you have to park inside the garage, they probably did not enforce at all until the electrician's truck came about.
Since they have driveways and allow parking for limited periods, what's the real difference if a car is in the driveways overnight (when it's dark)??? You can see it? It has no impact on property values etc? What's the big deal about the parking? Shouldn't the folks with Driveways be allowed to park on them regardless? Are the driveways part of the parcel the owner owns or are all the driveways HOA common area's???

The CC&R parking restrictions need to be amended because they are not enforceable to begin with...

Great points, Fred.

As to Larry's comment that "If your association levies a fine against a member, it is acting in a judicial manner" I believe it is incorrect, however, I will check with my lawyer friends and get back to you all.

Fred: In California, I believe that Nahrstedt v Lakeside Village ruled for the defendant in a case that matches your description. Nahrstedt had 3 indoor cats. The HOA prohibited pets and fined her upon discovery. She sued and on appeal lost. In this case, the court ruled that sec 1354 is applicable and the plaintiff would need to prove that the use restriction is unreasonable because it is arbitrary, violates a fundamental public policy, or imposes burdens on the use of the affected property that substantially outweigh the restriction's benefits.

Using the Nahrstedt decision as a guideline, it is difficult to understand how a use restriction prohibiting parking in a driveway would be considered unreasonable. It is not arbitrary, It does not violate a fundamental public policy, or impose burdens on the use of the affected property. BTW: The HOA isn't enforcing a use restriction on the garage. It is enforcing a restriction on vehicles being parked in view of adjacent homes.

There isn't anyone in the community that objects to the vehicles being parked on the driveways. The issue is parking on the private streets. The homeowners that park their vehicles in the driveways want the homeowners without driveways to park in their garages or on the public streets. Also, those same members have no problems with the members lining the public streets with parked cars. So, its not that they care about the overall Association or having vehicles out of sight. They just want the street in front of their house to be empty.

Gary,

Thanks for the kind words.

I'm actually from Phoenix. Attended Northern Arizona University. Navy brought me to the east coast (via Diego Garcia and Cuba) and jobs kept me here.

Folks: The more I read, the more confused I get.

As i understand it, the board's defense for not enforcing the use restriction would be the BJR. First, I do not understand why the bylaw's mandate that it is the duty and obligation of the board to enforce the declaration has no impact. What good are the bylaws if they can't be enforced?

In my case, I do see the BJR as a defense. The board is enforcing (their interpretation) parking restrictions on one vehicle. What is the difference between applying the BJR and being arbitrary in this case?

California Civil Code 1354 states: The covenants and restrictions in the declaration shall be enforceable equitable servitudes, unless unreasonable, and shall inure to the benefit of and bind all owners of separate interests in the development. Unless the declaration states otherwise, these servitudes may be enforced by any owner of a separate interest or by the association, or by both. In any action to enforce the declaration, the prevailing party shall be awarded reasonable attorney's fees and costs."

Please clarify why a group of owners cannot pursue an injunction to force the homeowners to comply with the use restrictions?

Finally, in order for the homeowners to comply, they would need to park their vehicles on the public streets (currently, there are 140 more vehicles than garage spaces) in front of the homes owned by members on the public streets. In your opinion, would forcing the members to park on public streets be considered unreasonable, because it is substantially more burdensome than beneficial to the affected properties.

Appreciate the information. The feedback has really been helpful.

Gary, not to put a cat among the pigeons but could it be that the HOA is enforcing a commercial vehicle restriction against the electrician? If that is the case, it is not selective enforcement unless they are ignoring other commercial vehicles.

Thanks for the clarification Susan.

I was simply trying to provide a different illustration to help Gary better understand the business judgement rule.

Gary,

Obviously there appear to be two different thoughts on the issue.

If you believe that your interpretation is correct, I would suggest getting a legal opinion on that interpretation from an attorney in your area. Bring copies of the governing documents and other documentation you have. It may cost you a few hundred to have the attorney review the material and give you their opinion. I believe that it would be money well spent prior to initiating any legal action against your neighbors or your Association.

Gary

Tough love but you are trying to "play lawyer" on this issue. As Tim said, hire a "real lawyer" and have a go at it.

That is exactly what I thought. Gary, this website is NOT a real Courtroom. You have tried very hard to "push" your case forward to a bunch of strangers in different states, and over the internet. Get real in California !!