Parking Restrictions Enforcement.

Greetings,

I hope I don't bore you with too much details. And I am not sure it is appropriate to ask this group about this matter. If this post is inappropriate, please accept my apologies and the moderators can remove this post.

But here's my situation. We got a letter from the Property Management on behalf of the HOA board of directors that warnings and fines would be imposed on those residents parking in the streets of the development. Such violates the CC&Rs. They site 'safety hazards' and 'nuisance' as the reasons in that letter.

First covering the covenants/declarations.

The Covenants (dated February, 1988) have a 2 specific articles.

Under Property Rights a section states "the right of the individual members to exclusive use of parking spaces as provided in this article." (Note no restrictions or guidelines on the use of such.)

Later in the same article is:

"Ownership of each lot shall entitle the owner or owners thereof to the use of not more than two automobile parking spaces, unless a greater number is required or permitted by Town Code at the time of initial development of which shall be as near and convenient to said lot as reasonably possible, together with the right of ingress and egress in and upon said parking areas and over private streets leading to and from such areas. The Association my regulate parking of boats, trailers and other such items in the Common Area. No boats or trailers or owners, members, or their guests shall be parked within the right of way of any public street in or adjacent to ."

Again, no restrictions or guidelines pertaining to the use of said parking spaces.

The covenants do define 'Architectural Control' and the ARC. Long story short: that article pertains to buildings landscape, changes, alterations, etc. Those would be expected. Nowhere in that section are vehicles of any kind addressed. Nor does the covenants grant the ARC control or rights over property use.

Now to cover the ARC document, the document they advise I would be violating if I park on the street.

The ARC Guidelines were revised and 'deemed ratified and effective as of August 1, 1996.' A section labeled 'Cars' has a single statement:

"Resident cars are not to be parked for any length of time in the street or front lawns."

For the record, the ARC guidelines also include restrictions on burning, spraying, dumping trash, and permanent parking of vehicles. To me these cover property use and are not ARC related purposes. As such they should be incorporated into the Covenants/Declarations. (Side Bar: ARC Guidelines restrict 'burning and growing of illegal substances.' Per this wording, is it ok for me to burn legal substances? Not trying to be flippant, just covering all the details. Burning of any kind is against town ordinances for the record. The ARC is redundant in this regard.)

Questions:

Do ARCs normally regulate cars, parking, and other property use items?
We have in the covenants a section
An article in the By-laws state that conflict in Articles of Incorporation, By-laws control. Conflict between By-Law and Declarations...Declaration shall control. Where to ARC Guidelines fall. By virtue that the ARC has approval control over the appearance, if that control conflicts with other documents, which controls?

The Declarations/Covenants do have a detailed process on how to change the Covenants. Such requires signatures of 3/4 of the current members.

It appears to me (my opinion) that the Board and ARC are trying to work around the process to change the Declarations by using (misusing?) the ARC guidelines.

Further, the wording of the ARC guideline on parking does not allow for normal and expected activities. For example, if I want to hose off my single lane driveway, or wash one of my cars, I would be in violation of the guidelines. I would have to park my cars off the driveway to accomplish those tasks. Likewise, my parents have physical limitations and require as little walking as possible. Therefore, they would park in my driveway and I would then have to violate the guideline and be subject to fines. 'For any length of time' is quite specific... as in, never. The restriction apply only to residents, But apparently not guests or contractors or any one else who wants to park on the street.)

I have been a resident here for 30 plus years and parked my car on the street until this recent (Aug 1 2019) letter restricting that activity. I have no explanation as to why after 30+ years (date of covenants) or 3 years (date of ARC change) the HOA/Property Management company decided to enforce this rule. They do site 'safety hazard' and 'nuisance to public services.' As an expert in 'safety hazards,' I know and teach that a hazard has to have potential to do property or personal damage. A parked car can not cause such damage. Relevant here because those are the reasons they site for enforcing the restriction. Nothing related to the architecture or landscape or appearance.

I am not asking for legal advise of any kind. I realize I will have to take legal action if I want to fight the issue. But I am trying to see if I am misinterpreting or have incorrect expectations of the current roles of HOAs and ARCs. Has anyone had similar experiences?

I thank you for your kindness in reading this epistle. I feel I am breaking some etiquette posting such as my first post and as a homeowner. I appreciate your indulgence and any insight you can provide.

Sincerely,
Robert

Thank you for your response, Melissa.

With regards to your first question: If my vehicle is legally parked per local ordinances, the driver who hit my car is liable and responsible. If it's 'hit and run', I have to manage the matter via my insurance company and local authorities. I make the decision and assume the risk of such damage whenever and where ever I park my car including parking garages and parking lots. BTW, if I am illegally parked, then I have a certain amount of liability for my actions and carry at least some of the fault for the incident.

To your second question, I have two parts and another facet.

First, the local protective services routinely drive their vehicles (fire trucks) through the neighborhoods. They do so as part of their training so that drivers become familiar with navigating the streets and understand the traffic situations they will encounter. If street parking prevents them from doing their job, the township has authority to define no parking zones or such to remedy the situation.

Second, the rule is applied only to residents. Anyone else can park on the public street and create condition you describe. So, that garage sale with 12 cars parked on the street, not an issue per the HOA rule. But if I park my car on the street so I can place my for sale objects on the driveway, I get fined. (Back to the expected and normal use of my property.)

I will add another facet. The HOA sites 'safety hazards' in their letter advising of the enforcement. With that statement the HOA has assumed some amount of responsibility and liability to enforce rules based on safety. The loophole here is that the they limit their 'control' to residents.

But, the HOA has not done an adequate job of defining the hazard, objectively stating the risk factors nor the level of safety actions/notifications for this particular situation. They need to also communicate all this information to the members.

So, if my (resident's) car parked on the street is deemed a safety hazard and property or personal damage occurs as a result, the HOA has a certain liability. They did not adequately enforce the rule and allowed the safety hazard to exist at some given time. It further complicates the matter when I ask why is my car considered a safety hazard and all other cars parking on the street aren't?

Based on other research, they should put up no parking signs. What will that do to marketability of my property when the signs read "No Parking - Residents of only"?

As an FYI, all those labels on your mower, hair dryer and around facilities have very specific language with regards to the terms 'Caution', 'Warning' or 'Danger'. These are the recognized terms and specific definitions when ever the words 'safety hazard' are applied.

Again, thank you for your response and input. While I understand your feelings about street parking, I am trying to keep this to the terms in the CC&Rs and the actions of the HOA in this matter.

RC

Thank you for responding, Cathy.

To answer the question, all streets are public. No other accommodations for parking except the aforementioned Article. No specific pads or areas for guest parking. To take it to the next step, the covenants define common areas as property owned by the HOA. The HOA does not own the streets. Except for the one article, the word street (or any derivative such as road, avenues, etc.) does not show up anywhere in any of the documentation.

To your other comments:

* We are fortunate in that the width of the streets will accommodate three car widths. Admittedly, you better be at no more than the speed limit if you plan to thread that needle. But it can be done. The parking density is not bumper to bumper, length of the street. A car in front (or side street) of each house; usually the length of a lot between them. Most people seem intelligent enough to stagger cars they park to prevent creating bottle necks.

* With that said, I fully understand the issue of line of sight and children playing. I will not disagree cars do add to the hazard. I am more concerned with residents who drive above the posted 25 MPH speed limit. The issue there is law enforcement of the speed limit. There's not really much the HOA can do other than complain to the police as I have done on several occasions. But to what degree can an HOA force residents to act safely?

* You are on target with your third asterisked point. (Guilty as charged.) Most residents have no more than 3 cars and even then, most only park one car on the street.

Yes, an article gives authority to 'formulate, amend, and enforce reasonable rules and regulations concerning the use and enjoyment of the front yard space of each lot and the Common Areas.' Common Areas are defined as HOA owned property. I've covered the 'street' term above.

The ARC per the documentation controls the architecture and landscape aspects. Their function deals with (per the Guidelines) 'an effort to preserve property values, the natural beauty of the subdivision and to assist with the quality of life in ".

Parking of cars does not fall into that purview. A section of 'Cars' should not be in the guidelines. To go to absurdity, if this is allowed, what is to stop them from dictating the make, model and color of the cars I own? (This alludes to the language of the rules you point out.)

I go back to my initial premise. The rule conflicts with the specific right in the covenants to parking spaces with no restrictions defining who can use them. The covenant allows them to restrict "boats, trailers and other such such items." By restricting the parking of cars via another mechanism (such as the ARC0, they violate the terms and conditions of that covenant section. If there is an issue with parking, the covenants need to be amended per the prescribed method within the covenants.

With regards to communications, I am trying to get information on the ARC meeting. But, I really doubt they will be swayed. I can forget the Board. The Board has never entertained a special meeting.

Thank you again for your input.

RC

The important question, which has been answered, is "who owns the streets?" If HOA doesn't own them, I don't see how the HOA can adopt a new rule forbidding members from parking on them. Even if the HOA did own them, I think it would be questionable whether such a rule could be adopted by the board and not whatever majority of your HOA is required to amend your restrictions. Since the HOA doesn't own the streets, street parking rules would be whatever is imposed by the local government that does own them.

I agree. Our streets are public but our Covenants have street parking restrictions stronger than the local government so by signing the Covenants, one agrees to abide by our restrictions.

Hi Robert,

Are you sure that the streets are publicly and not privately owned? The reason I inquire is that one of your Dec excerpts states:

//"Ownership of each lot shall entitle the owner or owners thereof to the use of not more than two automobile parking spaces, unless a greater number is required or permitted by Town Code at the time of initial development of which shall be as near and convenient to said lot as reasonably possible, together with the right of ingress and egress in and upon said parking areas and over PRIVATE streets leading to and from such areas.// (emphasis added)

I can't advise you re: NC law, but in Florida ARC guidelines do NOT supersede Dec provisions but are subordinate thereto. I presume that is the case in NC, but you would need to confirm that.

Good luck!

@ JZ2 I have verified with the town hall people, the subdivision streets are public. There are no listed private streets in the area. I do not know why that wording with regards to 'private streets.'

@ JohnC46: Thanks. I believe legal action is my next step. Or at least have an attorney write a letter on my (and others) behalf.

You may want to consider saving your money for the time being and simply requesting that the Association provide you with legal authority for its belief that it can enforce a parking restriction on a public street.

If it can supply you with a statute or case law in support, then it may make sense to get an independent legal assessment of the situation. If it cannot, it may revisit its position and both sides will be spared unnecessary legal expenses.

The key here is to be humble and non-confrontational in your request. A personal meeting with the Board president would be the best way to go, IMO.

I can try to be humble. The BOD has already come across as confrontational per other neighbor. Also, they shield access to themselves via the management company which has always been confrontational. In the past they use the "bring it up at the annual meeting". The BOD shuns any communication from what I and my neighbors can determine.

Thanks for the input.

Thanks ND. I am plan to pull in my horns. I'll ask questions and let the Board answer them.

To your point about legal matters and strength in numbers: in another HOA I belong to we sued the Declarant and HOA. The judge ordered disbandment of that HOA. But, we had to create a new HOA with incorporation, by-laws and declarations. (Kind of what we wanted anyway.) I don't want to repeat that. But, it's not my first rodeo so to speak.

Thanks, again, for your well thought out input.

Apologies for the double post... my browser 'burped' or something.

Could a moderator please remove the duplicate?

Thanks for the input CC7

The fine (which is an unknown amount) is assessed daily "until the home owner has permanently remedied the violation." Which is an interesting situation since some of the houses are rentals and the owner isn't the one violating the rule. Also, how does one permanently remedy a parking situation. When does permanency start?

To your point about parking the car while you clean your driveway or clean out the garage would appear to violate the rule since "cars are not to be parked for any length of time."

As to homes for sale, none that I know of. Our town has be identified as the fastest growing area, so the market here is crazy. Some house listings are measured in hours. This time last year, next door to me went on the market on a Friday. On Saturday people were lined up with their realtors 4 or 5 deep in the early afternoon. Talk about a parking problem.... ;) House sold that day, 12% over asking. And that's not unusual. One person went the sale by owner path. The owner was putting his sign out when someone asked if they could look at the house. About an hour later, the owner went out and took his sign down.

Things are cooling a bit, the house on my cul de sac was on the market for 3 days. ;)

Thanks again for your input.

I would like more information on this. Start a new thread maybe called Create a New HOA. Thanks

This is my problem.
My HOA told me that we need to park our third car “If you can’t park the 3rd vehicle on the driveway or in the garage it must be stored off site“ and that “most of the dwelling were designed for 2 car families.“ This was after several emails where I asked for proof of this rule and or how they suggest we solve this apparent problem.

We have a detached townhouse with a one car garage in Georgia that we’ve lived in for 15 years. Our child is now of age and has a car. We have one car in the driveway, one in the garage and the other partially in the drive way and lawn. The lawn area is not in the front of the house (off to the side) and is not on anyone else’s property. I know our by laws says we are not allowed to park in the street which is why we park where we do.

There is no where in our covenants or by laws that states you can not park on the lawn or anywhere else. It only mentions overnight street parking.

Can HOAs in Ga enforce rules that are not clearly stated in the covenants or by laws?

It seems like most of you are on a HOA in some capacity. Is it normal practice to tell homeowners they need to park “off site?” Which to me implies that they would like me to move out of my home or park at the gas station and walk home or put my child out.

I just got busted for parking on my lawn by our city. Been parking my truck under a tree next to my garage. All of sudden the code enforcement from the city came out to put a note on my door. It is listed that not allow to park on grass surfaces but only paved ones.

My choice is to add a concrete pad to extend my driveway or play rotating cars everyday. I have 3 cars and a 2 car garage. Driveway itself is wide enough for 1 car. Have been able to find a way to park and back up around the car in driveway. It's just not ideal and sucks.

It's been a while so I thought I'd post an update.

In communications the board did not answer direct questions about safety issues and if there were complaints from local government. They just stated, 'we're going to enforce the rule because emergency vehicles can't get through.' (Based on the 'tone' of that comment, I think it may be a personal/emotional point with a board member.)

I am now considering the legal options. Just leery of what that will cost me. I will see if others will join as part of a class action suit. I note several cars are still parked on the street. So, I may get such support. I feel on I'm on solid ground in any legal action.

I did get interesting input from the town government. I have to clarify a point or two with them regarding homeowners vs guests.

However, the 'town' considers CCRs as a contract between owners and HOA. As such they do not get involved ruling on public street parking. Even to the point that if there's parking restrictions on public streets by an HOA and a car gets stolen while parked on a public street, the police will not investigate the theft.

I haven't asked the board if they were aware of this but will after getting some clarifications from the town.

In my HOA when two cars are parked on opposite sides of the street but right across from each other, a large vehicle such as a fire truck could not get by but we only ban overnight street parking.

Apologies on my delayed response. Busy month for me. To respond to the posting since my 9/26 post:

@CathyA3: I understand and recognize the issue you point out. It seems that only the board members (who all live on the same street) have an issue and see a problem. My 30 year's experience does not support their claim. With respect, I understand the 'needs of the many outweigh the needs of the few.' However, I do not accept that as the reason in this case. Nor do I accept that the HOA takes on the role of safety managers and that is the only rationale they are using for enforcement. That safety role is not in the CCRs at this point and IMO should not be.

***

@JohnC46: I think that restricting overnight parking is not a workable solution since that's when people want to part on the street.

Did you define what 'overnight' means? Reading other sources, that's a gray area with a shifting time window. There's several ways to define overnight. And to a point their argument would cover, emergencies don't happen per a time schedule.

The rule as written prohibits ('at any time') what I would call the normal and expected use of my property. This rule makes it impossible to wash a single vehicle in my driveway, have a garage sale, play a game of hoops or even clean my driveway. And I am about to have a contractor on site for repair and such. His trailer will be parked on my driveway during that project. Now what do I do with my cars as I won't even have access to my garage (even if I could park a car in there.

***

@NPS: I will try a Special Meeting. But the board hides behind the management company and that's who I have to meet with first. I see that as a waste of time and an unnecessary time delay. My issue, per se, is not the management company since they just do what the board says. (I don't even know if they have 'authority' to interpret the CCRs.) I have been admonished for contacting the board directly, though I have that right per the CCRs to address my grievances directly.

You raise a good question on the number of people required to 'force' a special meeting. I know there's provision for such. I'll review that article.

***

@All: Thanks for the continued input. My position is that the board is bound by the CCRs just like the members. They must follow the prescribed process to make changes to the declarations regardless of the reasons they want the changes made.

As I dig deeper, I have found other issues that need to be addressed. They are not related to this 'parking thread' so I won't bore you with the details.

Again thanks for the input.

All the topics well covered.

I see three basic kinds of street parking in our neighborhood - all two or three car garages., all have driveways to accommodate four additional cars.

The first are the folks with multiple teenage children - some are kind and thoughtful and move their cars around on their driveways to ensure no one is parking on the street.

The second are the families that don't care ...they do whatever is convenient for them.

The third are renters who, for the most part, don't care.

Major contributor may be that all of those street parking have garages full of crap. Is there a connection?

@GeorgeS21: Good way to sum it up. Our area is probably 85+% single car garages and driveways (some don't have garages). And I plead guilty, my garage is a catch all, work and storage area; has been from day one for me.

Regarding renters, I considered that aspect. I haven't dug into it yet as I would have to look at rental agreements to see how they tie to the CCRs; if they even do. (Input anyone? Tie between renters and HOA CCRs?)

The rule reads 'residents' can't park on street. I feel certain the reason for the term resident is an attempt to include renters.

However, the covenants are a contract between property owners and the HOA, not renters (nor residents). Nowhere is the term resident or any reference to rental aspects used in the CCRs except this one rule. Again, maybe a renter's agreement has clauses related to HOA rules. (More research required.)

Continuing my line of reasoning, let's assume since renters aren't owners, the HOA has no authority per the covenants. Renters can ignore the rule. Potentially, renters do not get any notification since the owner is the HOA member on record and pays the dues.

Renters might be intimidated by the HOA letters and such if they get notification. But to your point, they also may not care as they aren't assessed the fines. Covenants specifically say assessments are against the property owner.

If the HOA attempts to fine owners they can say, 'I am not a resident and not parking on the street, therefore, you can't fine me.' The rule becomes unenforceable in any equitable manner. Even if they could fine owners of rental property, I doubt owners would care about any liens as they are in for the long haul.

Thanks for your input.

@CatheyA3: That's along the lines of what I would think would be the case. Landlord wants smooth sailing and protection. For the most part most renters keep the yards mowed, neat, etc. As I said, I hadn't looked at anyone's rental agreement. I was 'just supposin'.

Thanks for the input.