HOA can not enforce parking on a public street?

NancyH3 (Colorado)
Posts: 2

Posted:

Our HOA is in Colorado and I am on the board. Our covenants require that, "vehicles used for business (other than normal passenger-type vehicles) shall be stored or permitted to remain on the premises unless garaged, placed in an Architectural Control Committee-approved outbuilding or screened storage facility, and parked no closer to the front line of the Lot than the Building on the Lot which is closest to the front line of the Lot." Because we have a lot of oil rig workers with large trucks (over 12,000 lbs.)we did a survey and found most homeowners thought we should allow them if they were in the driveways. We have been.

Now our Property Management company says the State Patrol has told them that the HOA can not enforce parking on a public street, even if it is in the Covenants. They are saying we have to let the trucks park where they want to unless they are parked illegally, i.e. the wrong direction. Besides being unsightly the board feels they create a hazard for children at play. They are so big. Is the State Patrol right on this or do we have some rights? Nancy3

DwightT (Idaho)
Posts: 664

Posted:

You might want to check with your state Attorney General or some other legal authority. I went through something similar a couple of years ago. Our CC&Rs state that no signs are allowed in any common areas. Real-estate agents would often place open house directional signs on the sidewalks. When I told one of these agents that he couldn't place his signs there, he told me that the sidewalks were public property and we had no authority over them. He even called the city code-enforcement officer who backed him up. Even though city code does not allow sidewalks to be obstructed, the code-enforcement officer told me that it was up to the police dept. to enforce that law and the HOA could not do anything besides reporting it.

I contacted the City Attorney who told me that while the sidewalks are public property and the city police do have the authority do enforce the city laws there, that authority is not exclusive and does not prevent the HOA from enforcing it's own rules within it's boundaries. So while the police may decide not to enforce the obstruction law, the HOA can still enforce it's general No Signs rule. The City Attorney contacted both the real-estate agent and the code enforcement officer and let them know that our rules were enforceable.

So I wouldn't just accept what the State Patrol tells you without checking a little higher up the food chain.

BradP (Kansas)
Posts: 2,640

Posted:

Nancy:

Since the streets are owned and maintained by the city or your local municipality I doubt you can do anything. We are in the same boat and have no authority on them.

However, I would encourage you to check with your local ordinances, ours state a vehicle can't be parked in the same place for more than a 24 hour period, so we can get some relief if we need it.

MaryA1 (Arizona)
Posts: 7,043

Posted:

Nancy,

I'm surprised the State Patrol would even get involved in this issue. Are you within city limits or in the county? Either way I would check with the proper jurisdiction and find out if these oil rigs can be parked on the street. I believe this would be a city code violation where I live.

Regarding HOAs restricting parking on public streets; this is very common in many HOAs. The City where I live has no problem with HOAs restricting parking on public streets. This CCR restriction was upheld in a MO court ruling several years ago; the reason being that the members have agreed to the CCR restriction. This session a bill was defeated in the legislature that would have prevented HOAs from restricting parking on public streets. The legislators were overwhelmed with objections to the bill for a number of reasons which I won't go into here. IMO, unless there is a State law preventing this, an HOA can restrict parking on public streets if that is a restriction in the CCRs.

MicheleD (Kentucky)
Posts: 4,491

Posted:

In Kentucky, that "state patrol" guy would be cited for practicing law without a license.

Just kidding, of course.

But here's the thing, we cannot ask the police, local or state, to enforce OUR CC&Rs for us on the public streets in our HOA.

We CAN, however, enforce them perfectly well on our own.

The way to enforce them is to take it to court, if you have to, to get a judge to issue an injunction to prevent the homeowner from violating the CC&Rs.

By the way, taking a "survey" that says "most" homeowners don't have a problem with rig people parking their vehicles there will come back and bite you in the rear.

If this is how you determine which CC&Rs to enforce and which not to, (including the parking one), then your HOA is in serious trouble.

If the majority in the subdivision truly don't like or want a certain CC&R, then the ONLY recourse you have against not enforcing it is to AMEND the CC&Rs and any other supporting governing documents to make it a non-violation.

If you decide NOT to enforce one, just because a "survey says," then you are, in fact, practicing "selective enforcement," and when the time comes for you to HAVE to enforce a really IMPORTANT CC&R, and you need to go to court in order to do it, the judge will not look kindly on the fact that you simply disregard some CC&Rs, and not others, even going so far as to "justifying" it with a "survey."

I would strongly urge your HOA board to create an amendment that deals with the parking instead of relying on a "survey."

CharlesW1 (Georgia)
Posts: 826

Posted:

NancyH3,

Unfortunately, it is very difficult to enforce even “IF” stated in your covenants. However, when vehicles are parked in the wrong direction or on the opposite sides on the street on a hill or curved that is when the authorities can and should be called, immediately.

As far as the “riggs” you opened that can of worms by letting these vehicles park in the driveway. I’m certain the city or county ordinance has a weight limit on rural streets. I would check you city ordinances first and foremost.

Otherwise, I would suggest, JUST keep reminding those who continue to park on the street. With out of state residents, we didn’t put a notice on those vehicles, unless seen repeatedly.

Our association put a reminder notice (attached) under their windshield wiper; it reduced some, not nearly as many as we anticipated though.

Give it a try!

Best of luck

Chuck W.
BTW- I know Upstate NY their city allows street parking according to the day of the week. In other words today being the 28th (an even number) the cars would park on the same side of the street as even addressed homes, and with the flow of traffic. Maybe you city ordinance has something similar.

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NancyH3 (Colorado)
Posts: 2

Posted:

Thanks Michele. I understand what you're saying. Actually we had a challenge to the covenants and the definition of "vehicle used for business, other than a normal passenger vehicle." Hindman Sanchez didn't feel it was specific enough to be enforceable so we compromised. We should probably call a covenant committee meeting and get it nailed down as I think you are right. I'm thinking if we define "normal passenger vehicle" it would leave the others out.

RichardO2 (Wisconsin)
Posts: 1

Posted:

This question has been litigated twice. In both instances the member claimed that the HOA had no right to enforce street parking. In both cases the HOA won. It was ruled that they were enforcing the deed restrictions and not the municipal code.

Please open and read the contents of these links:
http://www.pohlshort.com/CM/Publications/Publications64.asp
http://www.communityassociations.net/cacondoguru/archives/2006/10/rv_parking_on_t_1.html

See:
Luxury Homes and Estates of Florida Magazine
by Houston E. Short
Recently I was asked to research whether or not a homeowner's association could prevent its members from using the street in front of their houses as a parking lot. Several homeowners in the subdivision routinely parked in the roadway which presented an obstacle to traffic and otherwise decreased the aesthetics of the neighborhood.
I researched Florida case law and found no controlling case. Accordingly, I expanded the scope of my research to foreign jurisdictions. Courts in other jurisdictions have upheld an association's regulation over roadways and have entered injunctions against homeowner's to prevent parking in the street. Specifically, the case of Verna v. The Links at Valley Brook Neighborhood Association, Inc. is a case prohibiting street parking. That case arose out of New Jersey and was decided in January of 2004.
In that case, a homeowner parked his work van in his driveway. The association's restrictions prohibited parking of commercial vehicles at the homeowner's property. Once the homeowner's association delivered a letter complaining of the violation, the homeowner simply began parking his commercial van in the street.
The case went to court and the homeowner argued that the municipality controlled the streets: not the association. The court disagreed.
The court found that the association's parking regulations promoted a neighborhood scheme which was created by the deed restrictions. Furthermore, the homeowner as a matter of contract agreed to additional regulations restricting parking.
The second case in support of the association's right to restrict parking is Maryland Estates Homeowner's Association v. Karen Puckett and Chris Schallert. The case essentially held that a homeowner must abide by all restrictions including restrictions against parking in the street. The homeowner cannot pick and choose which rules he will obey.
Foreign case law supports an association's efforts to restrict street parking. Florida courts will likely prohibit parking in the street provided the restriction is found in the covenants and restrictions.

RogerB (Colorado)
Posts: 5,067

Posted:

Nancy, I believe the state patrol is wrong. Why didn't your management company know they were wrong? And why didn't they challenge them on this?

PaulT6 (California)
Posts: 409

Posted:

Richard,

Very interesting, however it appears the only way to get results is to go to court, either the Association or an individual member.

Nancy,

We have the same situation. Historically, we had many Board members with the attitude of:
"whatever it is, it is not a problem, unless it is next door to me". In my opinion we could never get our Assn to take someone to court.

So, the next thing to do is very thoroughly review your Town's Codes and zoning restrictions. Many communities have commercial vehicle parking restrictions. Our Town's restrictions had a loophole which I was able to have corrected through the Town's Planning Commission. Our Town does nothing pro-active but they will respond, reluctantly, to a complaint. Let us know how you come out.

Paul T

PaulT6 (California)
Posts: 409

Posted:

Nancy,

Forgot this. Our Covenants Rules, based on the C&R's, prohibit the outside parking of vehicles used for business purposes that have dual rear wheels or more than two axles.
Pretty simple, no verifying GVW or measuring the vehicle, and it works.

Paul T

CarolR11 (Colorado)
Posts: 2,563

Posted:

All, please not that Nancy's post is 4 years old.

TimB4 (Tennessee)
Posts: 21,059

Posted:

All,

This thread is over 4 years old.

Richard reactivated it with his posting citing various cases about the subject.

As mentioned several times, it's best to start a new thread vs. reactivating an old thread. This is because laws change and what was good advice then might not be good advice now.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

While I am not totally sure on this, one way it often works is a declarant plans a development/association and the streets might well have parking restrictions on them. Typically no overnight parking.

Also the declarant will lay out/plan the streets according to local government restrictions with the full intention that once the streets are done and inspected by local whatever government, the streets will be "annexed" into the local government along with any parking restrictions.

Also quite typical for many local governments to say that new developments must plan on resident off street parking (lots, driveway, etc.) as there will be no overnight parking allowed on the new streets even if the developer wanted to allow such.

In my present HOA (and one before), the streets are public but no overnight parking is allowed and the HOA can enforce such a ban via fines. I cannot tell you how this legally works, but I can assure you it does.

Hope this helps.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By PaulT6 on 09/15/2012 3:32 PM
Nancy,

Forgot this. Our Covenants Rules, based on the C&R's, prohibit the outside parking of vehicles used for business purposes that have dual rear wheels or more than two axles.
Pretty simple, no verifying GVW or measuring the vehicle, and it works.

Paul T

Paul

In one HOA, one of our definitions (among others) of a commercial vehicle was if it had signage on it. Once had a dispute concerning two identical mini-vans. One a soccer mommy mobile, the other decked out in signage for a business. The signed one was considered a commercial vehicle and as such could not be parked overnight unless in ones garage.

Commercial vehicle parking (and identification) is a hot topic in many associations, especially in those associations where the units have garage parking.

Hope this helps.

PaulT6 (California)
Posts: 409

Posted:

John, you said:

"In my present HOA (and one before), the streets are public but no overnight parking is allowed and the HOA can enforce such a ban via fines. I cannot tell you how this legally works, but I can assure you it does."

My goodness, what a Godsend!! I would give almost anything for this. 4 year old thread, got me, must pay attention to details.

Paul T