Parking commercial vehicle

Started by BellaM2 • 46 replies • 3577 views

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BellaM2 (Florida)
Posts: 61

Posted:

A Board Member has decided to start parking his landscape commercial vehicle in his driveway. Our bylaws state not allowed. I am on the Board, what is your suggestion to get this under control?
BellaM2

RichardP13 (California)
Posts: 1,767

Posted:

What is not allowed specifically?

LarryB13 (Arizona)
Posts: 4,099

Posted:

Generally, CC&R's restrict how the property may be used and bylaws govern the association.

What do your CC&R's say about commercial vehicles, how do the CC&R's define a commercial vehicle, and why do you believe that this person is in violation?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Bella,

It doesn't matter if the violator ais a member of the Board or not. You follow your normal enforcement procedures as you would for any other individual who is in violation.

BellaM2 (Florida)
Posts: 61

Posted:

Thank you Tim:

Send him a violation letter as we send to everyone else. The CAM is hesitant and the other Board members are looking the other way.

This is ridiculous!!

CarolR11 (Colorado)
Posts: 2,563

Posted:

You might, Bella, suggest to the other directors, as diplomatically as possible, that by permitting the non-complying director to repeatedly break this rule, you all open yourselves up to homeowners' charges of favoritism, special privileges, etc. Your whole Board can appear to be corrupt (to stretch the word) and guilty of cronyism.

Take a Board vote on whether to send a violation notice to this director. As a conflict of interest, instruct the director in violation not to vote. I do believe that you want yourself on record in the minutes, Bella, as being opposed to "bending" the rules for this person. You also can instruct the violator to leave the room when you vote.

Why in the world is your CAM opposed to enforcing this rule in this case??? Or does the CAM avoid her/his role (if in your contract) in rule enforcement in general?

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By CarolR11 on 02/08/2014 12:02 PM

by permitting the non-complying director to repeatedly break this rule, you all open yourselves up to homeowners' charges of favoritism, special privileges, etc.

Actually the larger charge would be of selective enforcement the next time someone else parks their commercial vehicle on the property.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By BellaM2 on 02/08/2014 10:13 AM

The CAM is hesitant and the other Board members are looking the other way.

This is the reason why the individual believes they should get special treatment - Because others are treating him/her differently.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By BellaM2 on 02/08/2014 10:13 AM
Thank you Tim:

Send him a violation letter as we send to everyone else. The CAM is hesitant and the other Board members are looking the other way.

This is ridiculous!!

Aha, a BOD showing favoritism to one of its members. Is this not a major complaint from many?

CarolR11 (Colorado)
Posts: 2,563

Posted:

Yes, Tim, there could be an enforcement action taken against the Board. Could even be a lawsuit. I was trying to think of a less dramatic way to get this Board's attention.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By CarolR11 on 02/08/2014 2:35 PM

I was trying to think of a less dramatic way to get this Board's attention.

Sometimes you just have to bring out the main issue for the Association.

The things you mentioned (favoritism, special privileges, etc) were, to me, all internal issues that, depending on the character of the Board, may be considered by the board to be acceptable grumbling. I should say, considered by others on the Board as Bella is concerned of the issue).

However, mentioning selective enforcement can bring home the issue. This is because not only is it internal grumbling, it can be a valid argument for any legal action about enforcement. Defending such an argument will cost the Association money and the Board time and energy. This may be more convincing then others will think bad things about you.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By CarolR11 on 02/08/2014 12:02 PM

Why in the world is your CAM opposed to enforcing this rule in this case?

The CAM is a licensed professional. Board members are neither licensed nor professional. The CAM could loose his/her license, business, reputation, and income by diving into this mess.

I asked the OP some simple questions at the outset of this thread and I got no answers. These were simple questions and much the same that any CAM, attorney, or judge would ask. The OP did not even seem to know the difference between the association's bylaws and the declaration.

This issue has been beaten to death in previous discussions on this forum. The problem is this: if there is a restriction on how the property may be used it is normally stated in the recorded declaration so that a buyer has notice. The restriction must be stated in such a way as to be unequivocal and not subject to a multitude of interpretations. We have seen numerous examples in the past of restrictions on parking "commercial vehicles" without ever seeing a definition of what constitutes a commercial vehicle, leaving the term open to argument and conjecture and thus unenforceably vague.

The OP was unable to provide any documentation to substantiate her assertion of a violation. She made no mention of seeking advice from an attorney or even seeking advice from the CAM. She has a problem with a board member and assumes that the CAM will risk his/her professional standing to appease her. No wonder the CAM does not want to get involved.

CarolR11 (Colorado)
Posts: 2,563

Posted:

I see your Point, Larry, about Bella refusing to answer your questions. I also agree that the parking restriction, whatever it says, most lily is not in the bylaws but somewhere else.

But if it's in the CAM's construct to send violation letters, as it is in our PM's contract, then the CAM should do just that.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By CarolR11 on 02/10/2014 7:00 PM

But if it's in the CAM's contract to send violation letters, as it is in our PM's contract, then the CAM should do just that.

You cannot lawfully force a contractor, such as a CAM or PM, to act in violation of the law, whether civil or criminal. For that matter, you cannot lawfully require an employee to violate the law.

Professional managers are not your lackeys to order about and I would expect one to refrain from taking any action that would impair his/her professional standing or bring harm to himself. As I said earlier, CAM's are licensed professionals; board members are neither licensed nor professional.

As I understand it, the OP has either not brought this issue before her BOD or the BOD has declined to take action ("the other Board members are looking the other way."). Thus, the OP is requesting the CAM to act at the OP's personal behest and not that of the association. So far, it sounds like the CAM is on the right side of the issue.

RichardP13 (California)
Posts: 1,767

Posted:

I am in agreement with Larry. As a property manager, when taking on a client, first thing I would do is have a CLEAR understanding on how the Board would like the governing documents enforced. In California, a courtesy letter will be sent out. If the violation has not been corrected, that is when the Board gets involved, and I, as a manager, will not take any further steps, until it is voted on and in writing (minutes). The offender is given at least a 10 day notice that a hearing is being called to hear the case and/or levy a fine. When a manager becomes the sheriff in town, they have, in my opinion, overstepped their level of responsibility.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

One of the reasons some associations hire a CAM is to do their unpleasant work like be the sheriff.

BellaM2 (Florida)
Posts: 61

Posted:

Please, please, don't be so quick to Judge Me, I have not responded due to DEATH in my family and traveling out of state for a funeral. Thanks and I respect all your comments. I will get back to you as soon as I unpack and regroup my thoughts.

BellaM

BellaM2 (Florida)
Posts: 61

Posted:

CarolR11 (Colorado)
Posts: 2,563

Posted:

I'm assuming, Larry, that the commercial vehicle in the driveway violates the HOA's rules. If so, and if it were in an HOA where the contract with the MC states that the PM handle such matters, then the PM should write the letter. I don't see how the PM could lose her/his license by doing so.

The steps that the PM would take in my CA HOA are as Richard outlines.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By BellaM2 on 02/12/2014 12:46 PM

I have not responded due to DEATH in my family and traveling out of state for a funeral. Thanks and I respect all your comments. I will get back to you as soon as I unpack and regroup my thoughts.

Bella,

Sorry about your loss. Take the time needed to grieve and even more time to remember the moments of joy the individual provided to your life.

The truck issue can be resolved later.

Tim

BellaM2 (Florida)
Posts: 61

Posted:

The covenants of the HOA states: No vehicles displaying commercial advertising shall be parked within the public view. The CAM is responsible for sending out violation letters. He sent me one (not for comm. vehicle)
and said it is a mistake after I contacted HOA's attorney. I want to see the Bylaws and Covenants enforced, everyone else on the Board sees me as difficult, I do not go with the majority vote if I feel its not in the best interest of the Association. CAM/PM is corrupt, he is a joke,and so is the BOD. BellaM2

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Bella

In one HOA I was a member of our covenants said no over night parking of a commercial vehicle. We had many discussions on what was a commercial vehicle. One was two identical mini-vans but one had a sign on the door for Xerox Corporation. The other was a basic Mom van. We had another about an SUV that on the rear window had a real estate agency name, the agents name, and a phone number. We ruled signage meant a commercial vehicle. Each home had a two car garage. As one could park in their garage, we felt we were not generating a hardship. Not like they had to park blocks away.

In my present HOA, we also have restrictions about commercial vehicles but not all homes have a garage (they were optional). As "tight" a definition as the one above would be a sever hardship and foolish to implement yet we certainly would not want a sewage pumping truck parked in the neighborhood.

Also sign wrapped cars have been discussed on this forum. I say they are a commercial vehicle.

The answers are not black and white.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By JohnC46 on 02/13/2014 7:31 AM

I say they are a commercial vehicle.

It does not matter what you say. It does not matter what I say.

It does matter, however, what the declaration says. And that's where the trouble always seems to start because the declarant used a vague term when he said no "commercial vehicles." There seems to be no universally accepted definition of a commercial vehicle.

I recently searched through some of the statutes in my state and found at least three different definitions of what constitutes a commercial vehicle. None of them mentioned signs or wraps or bumper stickers.

When a person purchases real estate he is entitled to notice of any restrictions. Vague terms such as commercial vehicle or two-story-house are just not enforceable.

If you want to ban vehicles with signs or banners or wraps then amend your CC&R's to do so.

BellaM2 (Florida)
Posts: 61

Posted:

This present Board member always parked his comm. vehicle inside his garage. This started since he became a Board Member. Now I guess he is Entitled!! He knows exactly what it means in our covenants. His van has Large letters displaying the name of his company. Just another disrespectful idiot!

BellaM2

CarolR11 (Colorado)
Posts: 2,563

Posted:

Bella did say that her covenants state: "No vehicles displaying commercial advertising shall be parked within the public view." Seems pretty straightforward to me.

Bella, can you make a motion in executive session to send this director a violation notice?

SusanM23 (South Carolina)
Posts: 18

Posted:

I lived in a strict HOA community in NJ and we had restrictions on commercial vehicles. People were required to cover the signage--with large plain magnetic (or other material) strips--so writing/logos were masked when the vehicle was parked in the community. The vehicles were vans or pick-ups, nothing larger than that, with no attached trailers. Don't know what they've done with car wraps since I don't live there anymore.

SusanM23 (South Carolina)
Posts: 18

Posted:

AnnH6 (Florida)
Posts: 27

Posted:

Quote:

Posted By BellaM2 on 02/13/2014 7:10 AM
The covenants of the HOA states: No vehicles displaying commercial advertising shall be parked within the public view. The CAM is responsible for sending out violation letters. He sent me one (not for comm. vehicle)
and said it is a mistake after I contacted HOA's attorney. I want to see the Bylaws and Covenants enforced, everyone else on the Board sees me as difficult, I do not go with the majority vote if I feel its not in the best interest of the Association. CAM/PM is corrupt, he is a joke,and so is the BOD. BellaM2

To me, a commercial vehicle has a commercial license plate. That is a lot different than a vehicle that is displaying "commercial advertising" (like a Pampered Chef or Mary Kay ad that those reps tend to have). Does the vehicle in question simply have advertising on it? Further, can the owner put the vehicle in their garage or apply a magnetic cover over the advertising so that it is not "within the public view"? I agree that the right thing is to be fair to everyone and adhere to the rules, but I also like to see Boards act reasonably with enforcement and work with the owners to get them to compliance.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

I would also say it would have to be commercial licence plate.

Lets say your an average joe and you have this truck. Acceptable right? Yes.
Google

Now lets say he works for Toyota. Is it commercial vehicle? No.

All cars have logos, you should refer to your state's standard definition of a commercial vehicle for guidance.

AnnH6 (Florida)
Posts: 27

Posted:

Very true and also, what is the city or county ordinance concerning commercial vehicles? How well has the HOA defined what is or is not "commercial advertising"? Is it a logo on a car or truck? The name of a company with a telephone number? If I work for an organization and I have a bumper sticker with the organization's name, is that commercial advertising? Or those sticky decals that people seem to like to put on their rear window?

Given some of the tacky and lewd things I have seen plastered on rear windows, makes me kind of nostalgic for regular business advertising

Would rather see a lawn service name and telephone number as opposed to personal statements about politics and sex.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

a commercial vehicle is a vehicle used for commerce

DOH

a company vehicle used for company business is obvious

a private vehicle used for 'avon' not so clear

a private vehicle used by an independent re agent ? imo yes

a 3/4 ton pick up - yes

a hum vee ?

if your CC&Rs are not clear they are not enforceable

my hoa:

3/4 ton and over

any added signage beyond 'factory' logo

ladder rack and / or fixed tool box

commercial or truck plate

may not be parked visible on lot or driveway overnight, may be parked sun up - sun down

(we have ample parking by our clubhouse for said vehicles)

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By JohnB26 on 02/22/2014 7:31 PM

if your CC&Rs are not clear they are not enforceable

I disagree.

If the covenants or rules/regs aren't clear, they might be challenged and they may or may not survive a legal challenge. However, if nobody challenges, then they can be enforced as the Board interprets them.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

they may be APPLIED as the BOD interprets them

6 of 1/2 dozen of another ?

what if it's a 'baker's dozen ?

the HOA, not possessing an armed sheriff or marshal, can not ENFORCE anything

only a court of law may order actual enforcement

the HOA may assess a fine and if unpaid may register a lien against the property, they may even apply for a foreclosure of said lien ~ however, the COURT will actually do the 'ENFORCING'

remember: all (political) power comes from the point of a gun

sad fact, but true none-the-less

TimB4 (Tennessee)
Posts: 21,059

Posted:

Per thesaurus.com:

Synonyms for applied
adj used

enforced practiced tested activated adapted adjusted
correlated devoted exercised related utilized brought to bear

JohnB26 (South Carolina)
Posts: 1,569

Posted:

commandment: thou shalt not steal

you see me approaching your house looking suspicious carrying an empty canvas sack

i also have a crowbar

how, EXACTLY, would you 'enforce' the commandment ?

according to your definition the way would be to say 'stop' and impose a fine if I don't

however, your house would STILL be robbed

the ONLY way to ENFORCE (the key being the suffix FORCE) would be to petition the courts (via the police) to use whatever force is required to PUNISH me for my action AFTER THE FACT

or

enforce the commandment in advance by physically stopping me (using, uh hu, FORCE)

JohnB26 (South Carolina)
Posts: 1,569

Posted:

Roget's (college) Thesaurus (in dictionary form) 1985

enforce, (v.t.) compel, force, oblige; urge, lash, goad; strengthen; execute, sanction, put in force. See: COMPULSION, CAUSE.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By TimB4 on 02/22/2014 7:49 PM

Posted By JohnB26 on 02/22/2014 7:31 PM
if your CC&Rs are not clear they are not enforceable

The problem with this thinking is that the courts have already ruled repeatedly that covenants must be clear, unambiguous, and not open to multiple interpretations to be enforceable. You suggest that the board has the right to "interpret" covenants, which implies that your restrictions are vague, unambiguous, and/or open to multiple interpretations.

By attempting to enforce vague restrictions when you know you cannot, you subject yourself and your fellow board members to personal liability. To fall under the umbrella of qualified immunity from lawsuits, directors must act as a reasonable person in a similar situation would. By definition, one who knowingly and willfully violates the law is not acting as a reasonable person would.

The burden is on the association to establish clearly-worded covenants if they wish to enforce them.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

well said

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By LarryB13 on 02/23/2014 1:40 PM

You suggest that the board has the right to "interpret" covenants, which implies that your restrictions are vague, unambiguous, and/or open to multiple interpretations.

No, you miss my point.

I'm saying that unless the membership does their job of being the checks and balances to the Association, a Board is free to enforce CC&Rs as they choose to interpret them.

I'm not saying that the Board is right or that the interpretation would be valid. I'm simply pointing out that if the membership allows it to happen (typically by apathy) - then the end result is the CC&Rs can and likely will be enforced.

Yes, a Board should not try to enforce vague covenants. The Board should try to clarify any vagueness by amending the vague document. However, we all know that there are individuals serving on Boards who believe otherwise. Unless the membership challenges them, replace them and/or volunteer to serve, then the reality of it is that within that Association, the covenants, no matter how vague and no matter if they are valid or not, can and may be enforced by those serving on the Board.

Are there potential issues, yes (and you have pointed them out). However, if the membership is apathetic and doesn't want to participate in the running of their association then those potential issues will likely never become real issues.

Again, my point is that unless the membership does their job of being the checks and balances to the Association, a Board is free to enforce CC&Rs as they choose to interpret them.

LarryB13 (Arizona)
Posts: 4,099

Posted:

Tim,

Thank you for clarifying that. It appeared that you were advocating something that you were not. Sorry for the misunderstanding.

JohnB26 (South Carolina)
Posts: 1,569

Posted:

{quote] The Board should try to clarify any vagueness by amending the vague document.

The BOD may NOT amend the CC&Rs w/o the appropriate membership vote, usually at least 66% of TOTAL members actually voting AYE.

The BOD is charged with the management of the corporation AS PER THE CCRs and the ByLaws, not the modification / interpretation / interpolation / of the basic contract.

They are ADMINISTRATORS not interpreters.

If the contract is vague it becomes unenforceable ~ PERIOD.

They may TRY to apply their 'interpretation' but it will not 'hold water in court'.

If different BODs have had different 'interpretations' that in and of itself would be Prima Fascia evidence of 'arbitrary and capricious' covenants.

Applying the CCRs would be the BOD's job, ENFORCEMENT of the contract would be the court's.

Wanna go see a good contract attorney to settle this matter? Loser pays the fee to BOTH the attorney and the other bettor !

TimB4 (Tennessee)
Posts: 21,059

Posted:

JohnB,

Am I being that unclear in my writing?

Here is the line of my post you quoted with some emphasis added:

Quote:

Posted By TimB4 on 02/23/2014 3:18 PM

The Board should try to clarify any vagueness by amending the vague document.

If the vague document is the CC&Rs, then the CC&Rs would be amended by the procedure outlined within the CC&Rs and/or applicable State laws.

The process in my Association would be: 1)the Board would propose the initial language in the amendment 2) initial draft is published to the membership 3) a general membership meeting is held to receive membership feedback on the language 4) the draft is amended based on the feedback 4) then seek a legal opinion on the amended draft 5) the amended draft is again amended, based on the legal opinion, into a proposed amendment 6) this proposed amendment is then published to the membership 7) a general membership meeting is called to vote on the proposed amendment.

In my opinion, part of being administrating/managing the corporation includes identify any potential issues a governing document may contain and then take the proper steps to correct the potential issue so it doesn't become a real issue.

I know that you and I disagree on the terminology each of us use. However, based on the Thesaurus, it appears that we are often in agreement of what is being said. We also, apparently disagree on the role of the courts.

In my opinion, the courts rule over a dispute about a contract. The court will determine, based on the terms of the contract, who prevails (in whole or in part) in the disagreement between the two parties. The party who brought the issue to the court who is actually enforcing the civil contract as they understand it.

However, since it appears that we basically agree, I don't believe we need to clog the forum over the words we each choose to use. Instead, let us each use the words we choose and let the readers enjoy seeing two different ways of expressing the same thing.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By LarryB13 on 02/23/2014 7:16 PM
Tim,

Thank you for clarifying that. It appeared that you were advocating something that you were not. Sorry for the misunderstanding.

Larry,

Thanks for showing that I wasn't as clear as I thought I had been in my initial posting.

JeffT2 (Iowa)
Posts: 880

Posted:

Many covenants specifically give the board the power to interpret the covenants.

If the board has authority to make rules, then they can create specific rules that "interpret" the covenants. For example, if the covenants give authority over parking, then the board may create rules for parking and publish these rules.

Can't the courts decide what the covenants mean, not just rule them unenforceable?

JohnC46 (South Carolina)
Posts: 14,265

Posted:

I am not nor do I play a lawyer.

I believe if the Covenants state that commercial vehicle parking is not allowed then the BOD is well within their right to define and control such via Rules & Regulations.

CarolR11 (Colorado)
Posts: 2,563

Posted:

I'm with you, John46, and said so waaaaay above. The OP's first post made it very clear what is NOT permitted per her HOA's documents.

BellaM2 (Florida)
Posts: 61

Posted:

Thanks for all your comments. We have gotten the commercial vehicle issue resolved. Board Member is back to parking his vehicle inside his garage.

Thanks,

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