On Street Parking - is the HOA Liable

Started by StaceyP • 8 replies • 2392 views

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StaceyP (Utah)
Posts: 15

Posted:

Hi. I live in Utah, in a townhome HOA with 88 units. Our community is private and thus the streets are private and maintained by the community. There is supposed to be no on-street parking. There are signs stating that and many a notice has been given to homeowners. They do tow occasionally but people still park on the streets. There are no stop signs at any of the corners and just one "yield" that is painted on the road to tell people to slow down at the main intersection of the community.

My question is: since they are private streets is the HOA liable if say someone comes around a corner and hits a car parked on the street or if there is street parking and an emergency crew can't get by? Or if someone doesn't yield and there is car accident?

Stacey

PitA1
Posts: 222

Posted:

if your CCRs have restrictions which are safety related

AND

the directors fail to enforce same

THEN

your HOA and possibly the directors themselves 'probably' would be found negligent

as far as towing goes: call a major tow company and let them post the appropriate required signage and handle the issue
however, they WILL TOW AGGRESSIVELY

this will handle the enforcement and HOA liability issue

if, however, someone was driving negligently they, personally, would be liable

liability law does not change inside a HOA - the law is the law

StaceyP (Utah)
Posts: 15

Posted:

Thanks for the reply. There is signage about towing but it is rarely enforced. When I was on the board we regularly towed people. With a new board in place they are taking a more lenient approach which I don't agree with and that is why I asked the question.

I've sent them 18 photos from the last 2 weeks showing how bad it is but they won't do anything. I've asked for the number of the tow company and they refuse to give it to me as community members should not be calling them. So I asked the board members for their phone numbers so I can call them and they can call the tow company. They refused that as well.

I just know something is going to happen and if the HOA is sued because of their own negligence I'm worried those costs will be passed on to us homeowners.

thanks,

PitA1
Posts: 222

Posted:

not necessarily

if the director(s) knowingly breach their fiduciary duty they may be held PERSONALLY liable and if mal-feasance occurred will NOT be covered by the D&O insurance

notify the BOD via the 'registered agent' certified mail return receipt of the covenant restriction being violated and the emergency vehicle delay effect therefrom

the 'registered agent' can be found at you secretary of state's website

CAVEAT EMPTOR

RichardP13 (California)
Posts: 1,767

Posted:

If the HOA placed no parking signs on the streets and have a policy of towing cars and in fact towed cars, then the owners of the vehicles that were hit are liable.

TimB4 (Tennessee)
Posts: 21,059

Posted:

Quote:

Posted By StaceyP on 06/12/2014 12:20 PM

My question is: since they are private streets is the HOA liable if say someone comes around a corner and hits a car parked on the street or if there is street parking and an emergency crew can't get by? Or if someone doesn't yield and there is car accident?

Liability would always be a question for the courts to decide.

As John (Pita) pointed out, if you have the proper signage and can show that the Association tries to enforce the no parking restrictions, the risk of liability is lessened.

If there were an accident, an attorney may or may not name the Association in any legal action (simply because the Association owns the road). They do this because the Association may settle and pay a price that is less expensive than defending in court that the Association should be held harmless (this is actually what happened in the Zimmerman case in FL).

I have a friend who owns a fencing (sport) school who told me, it's not a matter of if they get sued but when. Therefore, the best they can do is put things in place (signage, permits, disclosures, releases, etc.) that will ensure they will win the legal action when it happens.

I always remembered that discussion and use it when I evaluate situations within the Association today. I don't worry about what might happen if the Association is sued, I take steps (do repairs promptly, keep signage and roads in good condition, etc.) to make sure the Association would win any litigation that someone would bring.

PitA1
Posts: 222

Posted:

well said

LarryB13 (Arizona)
Posts: 4,099

Posted:

Quote:

Posted By StaceyP on 06/12/2014 12:20 PM

Our community is private and thus the streets are private and maintained by the community.
There is supposed to be no on-street parking. There are signs stating that and many a notice has been given to homeowners.
There are no stop signs at any of the corners and just one "yield" that is painted on the road to tell people to slow down at the main intersection of the community.

My question is: since they are private streets is the HOA liable if say someone comes around a corner and hits a car parked on the street?

If this occurred on a public street would the law find the driver liable for his failure to control his car or would it find the city council liable for failing to clear the road for stupid drivers? Most states have laws against running into things with a car. Hitting a parked car would violate the statutes requiring one to maintain control of his vehicle. The HOA would not be liable unless it was driving the car that hit the parked car.

Quote:

or if there is street parking and an emergency crew can't get by?

In this case, the party who suffers damages caused by an inability of emergency crews to reach the scene may have a cause of action against those owners who blocked the street. The car owners who parked in the street in violation of HOA rules should have foreseen the possibility of preventing emergency access and have accepted the consequences of doing so. I fail to see where the HOA would be liable in such a case.

Quote:

Or if someone doesn't yield and there is car accident?

The person who was required by law to yield but failed to do so is liable. Uncontrolled intersections are not uncommon even on public streets. The lack of signs does not give one driver license to plow into another. Unless the HOA is operating the vehicle that failed to yield I see no liability for the association in this circumstance.

RwT (Florida)
Posts: 154

Posted:

It comes down to the proximate cause of the action.

Parked vehicles don't cause accidents.
Failure to maintain control of a vehicle you are operating is negligence.

The judge/jury must decide on the facts whether the driver operated his car negligently resulting in a collision (i.e. causal for liability).

The OP says the HOA has a policy against parking on the street.
Signs and past violation notices show the rule is reasonably enforced.
It is unreasonable to expect the HOA to continuously monitor every vehicle on every street and immediately correct the situation(s).

As far as emergency vehicle delay... I'm not familiar with your streets or roadside elements.
It's always a concern but rarely an actual impediment.

Towing from common areas... Usually requires HOA director approval unless otherwise delegated by the BOD.

* Non-Lawyer spokesperson.

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