Request Direction Enforcing Bylaws

Hi Mike,

Welcome to the forum.

My suggestion is, if proxies are allowed, to set a meeting to repeal the parking rule. Then when you go door to door, take directed proxies (where the member instructs the representative a specific way to vote) with you and have them fill out the form. This should get you the numbers.

Then if the vote is to repeal the rule, the members have spoken.

If the vote fails to repeal the rule, the members have spoken and you can point to that vote as the reason why the Board is now enforcing that rule.

I've attached a copy of a directed proxy (if it helps)

Hope this helps,

Tim

Hi Mike:

May I ask who owns the streets? Are the streets owned and maintained by the HOA or are the streets owned and maintained by the local government?

I have not looked at TX statutes on this issue, but I know that other states have over the last few years made changes to their state statutes where if the HOA does not own the street and if it is public property then the HOA cannot regulate. Again, this issue can vary depending on each State and their regulations and who owns the property in question.

JanetB2,

I do not think the streets are owned by the HOA & they are under city guidance.

From what I understand, that is a debate that has occurred here in the past. Many members would ask, "how can the HOA govern city owned property?". At which the typical response is "the government owned property is within the confines of the HOA regulated area".

Hi Mike:

You need to be careful because if the HOA does not own the property … then the question is can they regulate property owned by another entity? My association does not regulate the public streets and if someone parks a trailer or something that should not be parked on the street, the city will eventually have them remove. If they park it on the lot violating our governing documents, then the HOA can ask for it to be removed.

I would recommend checking your state statutes regarding what is defined as HOA property and what can be regulated. Look for definitions which describe “common elements” or “common interest community”. Below are examples from a couple of states I am familiar with the statutes as examples:

NV statute states:

NRS 116.017  “Common elements” defined.
(b) A planned community, any real estate within a planned community which is owned or leased by the association, other than a unit.

CO statute states:

38-33.3-103. Definitions
(8) "Common interest community" means real estate described in a declaration with respect to which a person, by virtue of such person's ownership of a unit, is obligated to pay for real estate taxes, insurance premiums, maintenance, or improvement of other real estate described in a declaration. Ownership of a unit does not include holding a leasehold interest in a unit of less than forty years, including renewal options. The period of the leasehold interest, including renewal options, is measured from the date the initial term commences.

In NV the HOA’s were getting out of hand and fined then were foreclosing on owners who had vehicles legally parked on the public streets. Since the HOA’s could not get it through their heads that was not allowed what NV did was spell it out adding to their State Statutes the following:

NRS 116.350  Limitations regarding regulation of certain roads, streets, alleys or other thoroughfares; permissible regulation of parking or storage of certain vehicles.
1.  In a common-interest community which is not gated or enclosed and the access to which is not restricted or controlled by a person or device, the executive board shall not and the governing documents must not provide for the regulation of any road, street, alley or other thoroughfare the right-of-way of which is accepted by the State or a local government for dedication as a road, street, alley or other thoroughfare for public use.

More states are starting to look at this issue as it gets out of hand in some areas of the country. In my area we resolve the issue by having the City legally responsible for their government “public property” and the HOA does not regulate or accept the legal responsibility. We feel it is best not to open ourselves to a legal battle and if we do not like the city ordinances, we can solicit the city to enact more strict rules themselves. Essentially if our assessments are not utilized to maintain and improve the property … then we do not regulate that property. Choose your battles wisely ... make sure if you want to engage in that battle that if push comes to shove the HOA absolutely can win.

If you haven't gotten a legal opinion on this, you may want to consider obtaining one. The question to ask would be:

Based on our governing documents and applicable laws, does the Association have the authority to enforce parking restrictions on the public streets within our development and, if the Association has such authority, would that authority be upheld if challenged in the courts (if there is case law on this, please cite)?

$600 now for this opinion might be worth it. It would also provide the Association with a much better response to the members question: "how can the HOA govern city owned property?"

Mike

You already have rules about parking. Do you not like them? Are you looking to change them? Are you looking to have people verify them?

What do you want? If it is to start enforcing them then send a nice letter informing all that what the rules are and the punishment for violating them. Also give them a time frame (say 30 days) to adapt then start enforcing them as they are.

I forgot to comment that...I also understand that that it isn't just what I like.

I want 95% of the members to agree the rules! it's not about what I like

Thanks for the input.... You are right about the participation (or lack their of) & that is a whole new challenge that I intended to open a new thread on for thoughts.

Mike the way our Town Adm explained it to our Board when they took over our streets is if our Declarations are more stringent than the town ordinances then our Declarations would apply and we could enforce our Declarations. You may want to check with your town or city.

Mike mentioned their is a 'rule' regarding parking.

Is this the case or were you just being general and it is actually a deed restriction?

Concerning in cases like this is the time that this has been allowed to go on.

This may have gone on for so long that cited members could seek a court's waiver. When a provision has not been enforced in the past, with common [BOD] knowledge of the violation, violators MAY have the equitable defense of waiver, meaning that the BOD has not acted on this and have allowed it to occur in the past and as such they have waived their right to now claim members are in violation.

If the violators can show disadvantages because for a long time they relied on the fact that no enforcement would occur, then the case COULD be dismissed in the interests of justice.

From what I have read in researching this in the past for our assn. this is the 'equitable theory of latches', meaning that while they may have had a right to enforce the rule, their failure to enforce it for so long as been to the current violators prejudice.

Some assn. documents address this and attempt indemnify the assn. against Latches but that does not always mean a judge will.

A long shot?, maybe.

Found some of my earlier research materials. Here's one:
http://www.hindmansanchez.com/resources/article/avoiding-common-covenant-enforcement-defenses

It contains the following:

"Laches is a defense closely related to estoppel. An owner can establish laches if there is a failure by the association to enforce a restriction for an unreasonable period of time, and as a result of the delay, the owner has suffered some disadvantage. There is no specific length of time that the homeowner must show to establish a defense of laches, but rather that the passage of time was unreasonable or unexplained and that there was some action by the owner based upon the inaction of the association. This is a defense that can be easily avoided by vigilant covenant enforcement. The association must act quickly upon receiving notice of a violation, and should have a specific enforcement policy. Warning letters should have a specific date for required compliance, and there needs to be diligent follow up by the association. The owner should never be given the impression that the association has no intention of enforcing the restrictions. Waiver is somewhat different from estoppel and laches in that the owner does not have to show reliance to his detriment on some act of the association. Waiver is generally defined as an intentional relinquishment of a known right. To establish a valid waiver, the owner must show that the association both knew that it had the right to enforce a provision, and intentionally failed to enforce it. Many declarations explicitly provide that if the association waives the right to enforce a covenant once, that waiver cannot then be held to apply to all situations. A variance is a good example of a waiver. Although the association has the right to enforce a provision, it intentionally grants a variance, or exception to the provision, to an individual homeowner under the specific circumstances of that situation. Many homeowners will try to “bootstrap” themselves into the defense of waiver based upon a variance granted to another homeowner by the association. It is essential that the association be very precise with respect to the granting of a variance, limiting it to the specific homeowner, and quoting any applicable sections within the declaration, so that other homeowners may not claim that variance constitutes a waiver of the provision as to other owners."