Parking

Started by JillS8 • 28 replies • 1364 views

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JillS8 (California)
Posts: 101

Posted:

I have posted along this subject and have received great advice so I am back for more. I live in a gated private 45 tract of single family homes and we are county area. There has been no street parking from 2:00 to 5:00 am rule on the books for years but never enforced because they have been challenged. The issue is there is absolutely zero mention of parking restrictions in our CCRS. Also, no parking stalls, fire lanes etc. the only mention in our CCRS is inoperable or commercial vehicles must be stored in garage or behind fence.
So the latest quest by the majority of the board is to make people park in their garage which they feel will eliminated street parking, there is no mention of parking regular vehicles in garage in CCRS. The management company has decided to back off the parking subject anis in the process of setting up meeting with board and attorney to address the issue.
I believe the CCRS can't restrict street parking or enforce owners to park in the garage, unless inoperable or commercial,. Am I wrong? It seems that it is clear in writing and trying to restrict parking in common area, which our streets are, is a battle the association can't win. Any input or advice would be appreciated. Thank you.

TimM11
Posts: 354

Posted:

I'm confused by what you mean by the 2 AM to 5 AM rule being on the books for years, yet there being no parking restrictions in the CC&Rs? Where is that overnight rule written, then?

KerryL1 (California)
Posts: 14,550

Posted:

With Tim, in what "book" is this 2-5AM ban?

KerryL1 (California)
Posts: 14,550

Posted:

With Tim, in what "book" is this 2-5AM ban?

TimB4 (Tennessee)
Posts: 21,062

Posted:

Keep in mind that being a private road (aka common area), Boards may typically adopt rules (providing that they are not in conflict with other governing docs) on the use of common area. This would include parking rules.

One could use the legal argument (which I forget the name of) that the mention of one thing excludes all others (i.e. the mentioning of what can not be parked on the streets excludes banning parking for any other vehicle). However, being a legal argument you will likely need to go through the courts for a ruling.

RichardP13 (California)
Posts: 3,868

Posted:

CCRs can restrict how owners park in a community, to the point that if you have 5 cars, then two cars must be in thee garage, two in the driveway, before you can park the 5th on the street.

IF the CCRs allow the Association to create parking rules, then yes, they can restrict parking between 2 AM and 5 AM. There is certain procedures they must follow. As a manager, I have seen such rules created, enforced and upheld by the courts.

RichardP13 (California)
Posts: 3,868

Posted:

JillS8 (California)
Posts: 101

Posted:

If there is no mention of parking restrictions or garage or driveway parking in CCRS then the board can't add them is what I am uderstandn from your pots and I did revisit the CCRS and there is none. The only thing that comes close I see that there can't be restrictions on common area, (streets are common are)

JillS8 (California)
Posts: 101

Posted:

What I mean is that the board added no street parking between 2:00 and 5:00 am about 10 years ago but it has never been enforced as a rule because it was challenged years ago but now some of the board want to enforce it but I say it is not enforceable because we have no parking restrictions and no verbiage that allow the board to do require parking in garage, driveway, or anywhere else. It is just not written into our CCRS.

JillS8 (California)
Posts: 101

Posted:

I looked and saw nothing in our ccrs

TimM11
Posts: 354

Posted:

So, if they're not in the CC&Rs, where did they put them when they added them? HOAs can implement and enforce parking restrictions, but they need to be documented.

JillS8 (California)
Posts: 101

Posted:

They were added to the rules several years ago. Although it has been brought up several times by homeowners challenging them, the board refuses to remove them from the rules I would agree with the homeowner that believes no street parking between 2:00 and 5:00 is not enforceable as it is not in CCRS. Can the HOA implement and enforce rules more restrictive than CCRS? I always thought the HOA could not but reading some comments I don't know the real answer.

JanetB2 (Colorado)
Posts: 4,219

Posted:

If the streets are "private" property owned by the Association and not "public" property then the Association can implement Rules and Regulations to manage their "private property". Rules and Regulations cannot supersede or replace items in the CCR's but can define if needed; however, you state that the CCR's do not regulate parking so there is nothing to supersede as long as no State Laws are violated. If owners do not like what a BOD implements then next election they can replace the BOD and make rule changes. OR the Owners can ban together and Amend their CCR's with proper input from all members to regulate parking and which would be more legal binding than the Rules and Regulations.

Rules and Regulations must be very reasonable and fair and can be more easily challenged in Court vs CCR's. When you state the CCR's do not allow restrictions on "common area" you would need to post the exact verbiage for us to give any opinion. I believe your interpretation of that section and ours would be potentially different.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Rules & Regulations cannot override Covenants/Bylaws but as your Covenants/Bylaws have no parking restriction (nor permission to park where and when wants to) R&R's could control. BOD"s can make proper R&R's and it sounds like their parking ban could be proper.

A BOD can also change R&R's so elect new BOD Members that will do so if that is what you want.

GenoS (Florida)
Posts: 4,276

Posted:

If the CCRs are silent can the Board make reasonable Rules & Regulations on parking? One theory holds that it may since the Rule would not conflict with the CCRs (which say nothing on the subject). Another theory holds that the Board may NOT make Rules & Regulations because even though the CCRs may be silent on the subject, at the same time they do not grant the Board the power to make Rules & Regulations regarding same. Would generic CCR wording that, in general, gives the Board the power to make R&R suffice (without referring, specifically, to parking)?

TimB4 (Tennessee)
Posts: 21,062

Posted:

Geno,

Rules on parking on common areas (i.e. private street) would be allowed.

Rules on parking on private property (i.e.driveway/garage), in my opinion, need to be within the CC&Rs.

GenoS (Florida)
Posts: 4,276

Posted:

An important distinction, Tim, thank you. That makes sense.

JillS8 (California)
Posts: 101

Posted:

I think I would disagree that if the CCRS are silent than the board could make rules about street parking. In California, our CCRS are recorded documents and are part of our deed and cannot be altered. If there are no street parking restrictions and the BOD adds a rule restricting parking, that changes the language of my deed. I would say the same for requirements to park in a garage or driveway.

For example as silly as it sounds, the CCRS are silent on kids playing in the street, can the BOD put a rule in saying they can't play in the street? I see no difference. Both would serve no purpose and are not reasonable. Don't think this is crazy, this was actually proposed as a rules a few years ago by a BOD

JillS8 (California)
Posts: 101

Posted:

In our CCRS
RIGHTS TO ENJOYMENT
Section 1 Members Right To Enjoyment. Every member of the Association shall have a nonexclusive easement for use and enjoyment of the common areas, including the right of ingress and egress, and support (if necessary) in, to, and throughput the Common Area, which shall be appurtenant to and pass with title to each lot, subject to all of the easements, covenants, conditions, restrictions, and other provisions contained in this master declaration.

The above is the only mention of use of our common areas, which the streets are, so this seems to allow members to park on common area without restrictions.

TimB4 (Tennessee)
Posts: 21,062

Posted:

Well Jill,

I understand your position on the topic.
I believe you understand the position of those who posted on the topic.

Feel free to go to court to see who's position is correct.

Tim

RichardP13 (California)
Posts: 3,868

Posted:

Jill

The CCRs have a section called Architectural Control. Let me ask you a question. If the CCRs don't say anything about paint color, can you paint your house pink or purple, and if your answer is no, why not?

GenoS (Florida)
Posts: 4,276

Posted:

Your CCRs do not address parking per se, they only contain a vanilla "use and enjoyment" clause governing the common areas. I know this isn't what you want to hear, but I think the board is well within its rights to enact rules and regulations governing the parking of vehicles on streets which are private common property of the association.

JanetB2 (Colorado)
Posts: 4,219

Posted:

I agree with the others in that the BOD could restrict parking on the streets because it is "common area" property owned by the Association. I agree with Tim that to regulate parking on your personal private property would need to be dictated in the CCR's; therefore, to tell people they must park in their garage would need the CCR's to be amended with required percentage of homeowner's agreement.

If you and your fellow homeowner's do not like the Rules and Regulations for the "common area" property then you need to ban together and vote out the current BOD at your next annual election and replace with individuals such as yourself and others who believe differently. Start campaigning

JillS8 (California)
Posts: 101

Posted:

I a man actually a board member myself. We dealt with this about 10 years ago and I got attorney. Everything got dropped. Now, I am a board me,beer and other owners having the same problem I had years ago. We are meeting with attorney to redo rules and I am hoping to clarify the parking rules. I will follow up on here with the results and input from attorney. Should be interesting. Great info from everyone. Thank you

JanetB2 (Colorado)
Posts: 4,219

Posted:

Please let us know outcome as that helps others in similar position. Wish you best of luck.

JillS8 (California)
Posts: 101

Posted:

And the winner is....
Legal advice is basically the law does not allow the BOD to restrict street parking on our private street. It can be regulated for example, you must park with the flow of traffic, no parking on fire lanes ( which we don't have anyway).

Now with the way our CCR are written it does allow us to enforce "storage" of vehicles and commercial vehicles parking. The following is the exact wording of our CCR on Vehicles.

SECTION IV

A reasonable number of trailers, motor homes, recreational vehicles, commercial vehicles, campers, boats, and other such recreational vehicles belonging to an owner, may be stored within the project if kept within a fenced side or rear yard area or within an accessory building constructed upon the lot.

The legal interpretation we got is that basically if it is not clear and specific and serves no purpose or can't or won't be enforced, it would be in the Association's best interest not to restrict street parking. While it does specifically mention certain types of vehicles, passenger cars are not mentioned. It was discussed that the CCRS are part of our deed and if it got to the point of court they could be interpreted either way. Trying to convince a judge that no street parking is reasonable and in the best interest of our CID is a gamble.

I will update if we vote for a second legal opinion.

AugustinD
Posts: 5,144

Posted:

Jill, thank you for the update. Would you care to share how much this legal opinion cost you and your circle? At my current HOA, I am tired of the Board compelling members to hire an attorney. A few years ago, regarding a records request, a member spent around $3000 for an experienced, fine HOA attorney to review the governing documents and write a letter to the Board. The member's attorney queried why on earth the HOA was denying her client records access given what statute and the governing documents say. The Board (with its frankly incompetent, I-will-do-anything-for-money attorney) came around, but it was brutal. The board still attached a ridiculous, intimidating (and unlawful) non-disclosure agreement to records' reviews for several years. Now my HOA has an architectural committee situation where everyone is lawyered up (early stages), once again.

JillS8 (California)
Posts: 101

Posted:

I will when we get a final cost. There was a flat charge to come to our site for the two hour meeting, a cost for her to review, comment, and recommend, and this has been going on for several years and it is well over $10,000.00 to the attorney for no final outcome, we are basically giving our opinions, selectively enforcing, calling to hearing and then letting the fines go just to fine them over and over. When I say "we" I am once again a BOD and my mission is to stop this insanity.

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