Is our HOA on firm ground, re: parking violations

DavidG45 (Delaware)
Posts: 994

Posted:

Our rules state that residents and their guests must park in their garage or driveway, and may only park on the street if it is temporary; which is defined as no more than three consecutive days. Our property manager has only recently become fully staffed, and we are a new community, so until recently we have never sent a violation notice to anyone.

We do have several residents (community is currently about 450 homes) who use the street as a parking lot, and it does, imo, make things a bit unpleasant, because driving down the street is a slalom course and you often have to pull over to let a car pass from the opposite direction. So as a board member I asked the property manager to start sending violation notices. However, the property manager does not have the staff to check for parking violations every day, so I directed them to only issue violations if a complaint is filed.

I then proceeded to file a complaint for five of our worse offenders - people who park large trucks near an intersection, people who park on the street all day every day, etc. Immediately one of the five said there are other people who are parking against our regulations, and insists if we have not issued everybody a violation notice they do not have to abide the notice they received.

So, bottom line, can an HOA choose to only aggressively pursue violations when complaints have been filed? Does the resident have any kind of case?

DavidG45 (Delaware)
Posts: 994

Posted:

And to clarify one thing - for now these violation notices are only warnings. I REALLY don't want to be fining people. I hope we can clear up a big part of the issue through voluntary compliance.

SheliaH (Indiana)
Posts: 6,964

Posted:

Ultimately, a judge would have to determine if the resident is right - personally, I think he/she is blowing smoke. The rules clearly state what's allowed or not and the homeowners knew what they were getting into when they purchased their homes. That said the "so and so didn't get a violation, so why am I being cited" has a point - all rules should be enforced consistently and fairly.

Sometimes, there are instances where the board may want to do more crackdowns when certain rule violations are causing bigger problems. When that happens, a heads up to the community is appropriate, as in:

"We are having more problems with vehicles being parked on the street longer than three days. As you know, rule such and such in the CCRS {provide the exact citation} state vehicles can only be parked on the street for a maximum of three days. However, some homeowners appear to be using the street as a parking lot, causing problems for others to get through. This can become a safety hazard for other drivers in creating blind spots and cause delays if police and or emergency vehicles have to get to a house.

The board has sent courtesy reminders for homeowners out of compliance - repeat offenders risk being fined and other legal action being taken against them. If you have any questions or wish to discuss your situation with the board, please notify the property manager so an executive session can be scheduled."

I know you don't want to issue fines, but you may have to if the repeaters ignore you or tell you to pound sand. Before you do that, talk to your association attorney to ensure your documents allow the board to levy fines. You'll need a fining schedule and the homeowners should be notified in advance, along with an effective date (30 days is good) before enforcement begins, along with an appeals process.

If you aren't already doing so, you should be photographing the offenders (time and date stamped) because you'll need evidence in case legal action is necessary. There will be people who will howl and threaten - as long as you follow your protocols, you can put the burden on them to explain to a judge why they think the rules shouldn't apply to them.

If it is not right do not do it; if it is not true do not say it. Marcus Aurelius

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By SheliaH on 02/16/2022 9:21 AM
Ultimately, a judge would have to determine if the resident is right - personally, I think he/she is blowing smoke. The rules clearly state what's allowed or not and the homeowners knew what they were getting into when they purchased their homes. That said the "so and so didn't get a violation, so why am I being cited" has a point - all rules should be enforced consistently and fairly.

Sometimes, there are instances where the board may want to do more crackdowns when certain rule violations are causing bigger problems. When that happens, a heads up to the community is appropriate, as in:

"We are having more problems with vehicles being parked on the street longer than three days. As you know, rule such and such in the CCRS {provide the exact citation} state vehicles can only be parked on the street for a maximum of three days. However, some homeowners appear to be using the street as a parking lot, causing problems for others to get through. This can become a safety hazard for other drivers in creating blind spots and cause delays if police and or emergency vehicles have to get to a house.

The board has sent courtesy reminders for homeowners out of compliance - repeat offenders risk being fined and other legal action being taken against them. If you have any questions or wish to discuss your situation with the board, please notify the property manager so an executive session can be scheduled."

I know you don't want to issue fines, but you may have to if the repeaters ignore you or tell you to pound sand. Before you do that, talk to your association attorney to ensure your documents allow the board to levy fines. You'll need a fining schedule and the homeowners should be notified in advance, along with an effective date (30 days is good) before enforcement begins, along with an appeals process.

If you aren't already doing so, you should be photographing the offenders (time and date stamped) because you'll need evidence in case legal action is necessary. There will be people who will howl and threaten - as long as you follow your protocols, you can put the burden on them to explain to a judge why they think the rules shouldn't apply to them.

I should have mentioned that we did run this by the attorney first, who confirmed we do have the right to these parking rules. The rules were also adopted 2.5 years ago. They were sent to all of the residents, along with a Fine Schedule, for review before being passed by the Board.

I did also have the property manager sent a mass email letting people know that we were going to start sending notices. Then, a couple of weeks later, we sent our first batch. And, yes, I did take photographs and listed the make, model, and license plate of each one. This, in fact, is why we aren't able to send notices to every single violator immediately. It is going to be a long task and I chose to start with the worst offenders in the street that goes from an entrance to the clubhouse; so it gets the most traffic. My plan is to concentrate on a small area at a time - because making note of the violators and documenting it is time-consuming.

ND (PA)
Posts: 792

Posted:

I think you have issues with how your rule is worded. You say your rule states, ". . . residents and their guests must park in their garage or driveway, and may only park on the street if it is temporary; which is defined as no more than three consecutive days".

It could be interpreted that anyone who moves their vehicle during that 3-day period and perhaps returns that same day and parks in the same or similar location for another 3 consecutive days may be in compliance with your rule. Or it could be interpreted that they are not in compliance. It's vague and can/will be challenged.

Further, I think it's a bit sneaky that you directed the MC to only issue violations if a complaint is filed, and then you, a Board Member, filed a complaint about a select group of violators.

I think for you to be on firm ground with enforcement of this, you have to scour the entire neighborhood at once, start the 3-day clock, somehow determine which vehicles do not move at all within that 3 days (chalk tires maybe), and then issue warning letters to all deemed to be in violation . . . not only the ones you personally have determined to be the worst offenders. By targeting worst offenders, you are practicing selective enforcement. Albeit you may have good reason as to make your "parking battle" more manageable for you and the MC, but I don't think that's appropriate practice and could be challenged (thus not on firm ground).

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By SheliaH on 02/16/2022 9:21 AM
Ultimately, a judge would have to determine if the resident is right - personally, I think he/she is blowing smoke. The rules clearly state what's allowed or not and the homeowners knew what they were getting into when they purchased their homes. That said the "so and so didn't get a violation, so why am I being cited" has a point - all rules should be enforced consistently and fairly.

Sometimes, there are instances where the board may want to do more crackdowns when certain rule violations are causing bigger problems. When that happens, a heads up to the community is appropriate, as in:

"We are having more problems with vehicles being parked on the street longer than three days. As you know, rule such and such in the CCRS {provide the exact citation} state vehicles can only be parked on the street for a maximum of three days. However, some homeowners appear to be using the street as a parking lot, causing problems for others to get through. This can become a safety hazard for other drivers in creating blind spots and cause delays if police and or emergency vehicles have to get to a house.

The board has sent courtesy reminders for homeowners out of compliance - repeat offenders risk being fined and other legal action being taken against them. If you have any questions or wish to discuss your situation with the board, please notify the property manager so an executive session can be scheduled."

I know you don't want to issue fines, but you may have to if the repeaters ignore you or tell you to pound sand. Before you do that, talk to your association attorney to ensure your documents allow the board to levy fines. You'll need a fining schedule and the homeowners should be notified in advance, along with an effective date (30 days is good) before enforcement begins, along with an appeals process.

If you aren't already doing so, you should be photographing the offenders (time and date stamped) because you'll need evidence in case legal action is necessary. There will be people who will howl and threaten - as long as you follow your protocols, you can put the burden on them to explain to a judge why they think the rules shouldn't apply to them.

I should have mentioned that we did run this by the attorney first, who confirmed we do have the right to these parking rules. The rules were also adopted 2.5 years ago. They were sent to all of the residents, along with a Fine Schedule, for review before being passed by the Board.

I did also have the property manager sent a mass email letting people know that we were going to start sending notices. Then, a couple of weeks later, we sent our first batch. And, yes, I did take photographs and listed the make, model, and license plate of each one. This, in fact, is why we aren't able to send notices to every single violator immediately. It is going to be a long task and I chose to start with the worst offenders in the street that goes from an entrance to the clubhouse; so it gets the most traffic. My plan is to concentrate on a small area at a time - because making note of the violators and documenting it is time-consuming.

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By ND on 02/16/2022 10:13 AM
I think you have issues with how your rule is worded. You say your rule states, ". . . residents and their guests must park in their garage or driveway, and may only park on the street if it is temporary; which is defined as no more than three consecutive days".

It could be interpreted that anyone who moves their vehicle during that 3-day period and perhaps returns that same day and parks in the same or similar location for another 3 consecutive days may be in compliance with your rule. Or it could be interpreted that they are not in compliance. It's vague and can/will be challenged.

Further, I think it's a bit sneaky that you directed the MC to only issue violations if a complaint is filed, and then you, a Board Member, filed a complaint about a select group of violators.

I think for you to be on firm ground with enforcement of this, you have to scour the entire neighborhood at once, start the 3-day clock, somehow determine which vehicles do not move at all within that 3 days (chalk tires maybe), and then issue warning letters to all deemed to be in violation . . . not only the ones you personally have determined to be the worst offenders. By targeting worst offenders, you are practicing selective enforcement. Albeit you may have good reason as to make your "parking battle" more manageable for you and the MC, but I don't think that's appropriate practice and could be challenged (thus not on firm ground).

To be clear - I had been accumulating complaints verbally from residents over the weeks/months. I double-checked the ones I heard the most about, made a list and took pictures, and gave it to the property manager.

I do believe the rules could have been better worded, but our interpretation is that parking your car every day is not temporary, and you cannot "hack" the rule by moving it occasionally.

AdamL1 (UnitedStates)
Posts: 559

Posted:

Quote:

Posted By DavidG45 on 02/16/2022 10:27 AM

To be clear - I had been accumulating complaints verbally from residents over the weeks/months. I double-checked the ones I heard the most about, made a list and took pictures, and gave it to the property manager.

I do believe the rules could have been better worded, but our interpretation is that parking your car every day is not temporary, and you cannot "hack" the rule by moving it occasionally.

This here is the problem. Your interpretation does not jive with most legal standards. That's why most City Parking authorities 'chalk' tires so they can verify if a car has moved or not. Driving away and coming back resets the 3 day clock by most standards.

I think your complaint point is a red herring. The fact is you are non-uniformly applying the rule, by your own admission. This would not be looked at kindly by a judge if it gets that far and serious.

Either apply the rule uniformly or rescind the rule.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

David

As long as you allow 3 days of parking, you will always have a slalom course. As Adam said unless someone check and marks vehicles you will not know if they have been there for 3 days or not. Move the vehicle and the 3 days begins again. Yes you can send violations but you will play hell tracking the vehicles for movement.

AugustinD
Posts: 3,698

Posted:

I see nothing wrong with enforcing the covenant against offenders, one offender at a time. The person claiming selective enforcement should be told this.

LetA (Nevada)
Posts: 2,679

Posted:

David, from your OP it appears that while your community was under declarant control, the declarant chose not to enforce one of their own covenants. Has your community sent out a courtesy letter to offenders
in the past, or are you just now starting to enforce this covenant?

Someone my go for the abandoned covenant angle, but you are for sure allowed to enforce your parking rules. Of the HOA communities I patrol, one in particular fines repeat offenders $100.00
for each offense.

AugustinD
Posts: 3,698

Posted:

A few more questions and comments:

-- Who owns the streets: the city, the county or the HOA?

-- What exactly does the covenant, from which I presume this rule derives, say?

-- Bad ju ju bees may result from enforcing HOA rules on public streets. E.g. if the city has certain rules for its public streets, do these clash with the HOA's rules? IIRC some states allow HOAs to enforce HOA rules on taxpayer-owned streets. Some states do not.

-- I see the OP got the HOA attorney's blessing. But this topic comes up a lot here. Lots of mines. E.g. how do you enforce this rule against a guest?

DavidG45 (Delaware)
Posts: 994

Posted:

Quote:

Posted By AugustinD on 02/16/2022 3:08 PM
A few more questions and comments:

-- Who owns the streets: the city, the county or the HOA?

-- What exactly does the covenant, from which I presume this rule derives, say?

-- Bad ju ju bees may result from enforcing HOA rules on public streets. E.g. if the city has certain rules for its public streets, do these clash with the HOA's rules? IIRC some states allow HOAs to enforce HOA rules on taxpayer-owned streets. Some states do not.

-- I see the OP got the HOA attorney's blessing. But this topic comes up a lot here. Lots of mines. E.g. how do you enforce this rule against a guest?

The town owns the streets, but outer attorney (who works for most of the planned communities in the area and is highly regarded) has assured us we can enforce parking laws that are more strict than the town’s.

Verbiage from our Declarations:

“Traffic Regulations; Parking Restriction. The Declarant and the Corporation may from time to time adopt additional rules and regulations pertaining to vehicular and pedestrian traffic in the Planned Community as it or they deem appropriate and necessary.”

From our rules, which were adopted in 2020:

“All motor vehicles owned and operated by Owner, Owner's tenant, invitee, guest, or lot occupant, or tenant's guest must be parked ONLY in the garage or the driveway located on the Owner's Lot or the adjacent street if such parking is temporary parking. No parking shall be allowed in the "cul-de-sac" portions of Ferwig Court, Llywelwyn, Broughton Court, Bangor Court, Ellinor Court, or Jayme Court. Parking in clubhouse parking lots is only permitted when using the clubhouse, pool, or other amenities associated with the clubhouse.”

Honestly, I’m not concerned about guests. It really comes down to people whose cars are on the street for days at a time.

AugustinD
Posts: 3,698

Posted:

Quote:

Posted By DavidG45 on 02/16/2022 3:57 PM

Honestly, I’m not concerned about guests. It really comes down to people whose cars are on the street for days at a time.

I hope the city has rules on multi-day parking, to help with "guests" who cannot be associated with an owner.

Aren't you concerned that, since you are on the board and also the complainant in this initial round of parking violation notices, you may have to recuse yourself from any hearings that are needed when the accused appeals to the board?

I say: You have the attorneys' blessing. Go ahead and issue the violations. Let's see how things evolve. (I do not mean this snarkily. I truly mean: Let's see how things evolve.)

I think your goal is admirable. But I am not sure how practical it is. As you may have noticed, parking issues come up a lot here. It's a major source of dissension in HOAs and COAs.

From the cheap seats of non-HOA land, I am pondering and "just saying."