Another Motorhome/RV question

Thank you, Marianne,

The City code would only supercede your restriction if your restriction allowed something that is prohibited by city code. Since City code allows parking on the street, with no exceptions, you could use the statement I provided which only allows it for 24-hours to load and unload.

If it is a public street how do you stop a non-HOA person from parking their vehicle?

Marianne,

This has been a topic of discussion in our Association for some time. As it was explained to us, The Association may make rules/regulations that pertain to the property they own (common property) or property they over see (individual lots). If the city/county owns the streets, the Association may not restrict any activity on those streets.

Therefore, if the streets have enough room for parking and are owned by the city/county, then people may park what ever vehicle is legally allowed to be parked there for what ever time limit is allowed by the city.

I disagree with Mary when she says: "The City code would only supercede your restriction if your restriction allowed something that is prohibited by city code." City ordinances, County Codes, State Laws and Federal Laws all supercede HOA rules if there is a conflict between them. The conflict may be when the HOA permits something the law does not or when the HOA prohibits something the law does not.

The best example I know of where conflict existed by a law allowing something that most HOA's prohibited would be satellite dishes. Most Associations prohibited them prior to the FCC enacting the OTARD policy. The HOA rules/regs were in conflict with the new law therefore Federal Law superceded HOA rules.

The rules may be different in AZ (where Mary lives) but adding a restriction to limit parking on a public street that has no restrictions would have the HOA rules being in conflict with city laws (at least in VA). Therefore, the city ordinance would control. This of course is a laymans opinion. You should probably run it by your Associations lawyer for their opinion.

The question I would pose to the lawyer would be: "If we limit parking time of certain vehicles on public streets and someone challenges it in court, basing the challenge on the fact that the Association does not own the streets and there is no time limit for parking imposed by the city, would the Association prevail?"

I do agree that your rational for wanting to limit the parking is reasonable and passes the common sense test. I also agree that the Association would be allowed to impose restrictions to parking RVs, trailers, etc. in the driveways. I also believe that Mary's consideration of allowing 24 hours to load/unload/clean the RV is good (however, I would lobby for 48 hours).

Your question was: will local city ordinances supersede our CCRs? The answer would be: Yes, if they were in conflict with each other.

If the city streets are really too small to allow for curb side parking, I would suggest that the Association lobby the city to investigate and make curb side parking illegal for those streets. The best test to that would be to get a recommendation from the local fire department on their concerns in navigating the streets in your community.

Hope this helps,

Tim

Michele:

That's very interesting and well explained. Thanks. One question: why would it have to be part of the covenants and not Rules and Regs?

Our streets are designated as common areas by our Master Deed until such time as they are accepted/dedicated to the township. Our Rules and Regs say we can create rules "Reasonable regulations consistent with the Act, the Master Deed
and these Bylaws, concerning the operation and the use of the Common Elements."

I'm guessing in our situation, since technically, the streets wouldn't be common areas once dedicated, they can't be covered in Rules and Regs ... under what grounds then could they be covered in the CCR?

Dee,

What Michele is saying is that if you don't already have a rule covering parking on the street you cannot adopt a rule addressing that. You would have to amend the CCRs. The BOD cannot adopt rules to cover a topic that is not already covered in the CCRs.

Since you now have private streets, no matter what restrictions are placed on those streets can be legally enforced whether they are consistent with city code or not. The City has no jurisdiction over your private streets.

DJ,

You do the same thing you do for any other CCR violation; send them a notice of violation! It doesn't matter that it's a public street; if the CCRs say no parking on the street, the CCRs prevail. There is case law to prove this. See my response to Tim. Of course you are in Canada and this case law is in the U.S., so I don't know that Canadian courts would rule the same way.

Marianne,

Yes, they will be bound by whatever the new restriction says. The board may choose to grandfather them in but they are not required to do so. However, if they wish to grandfather they should state exactly how the grandfather clause applies. IMO, the grandfather clause should be a written document that is transmitted to each applicable member for their signature.

Excellent, Mary. Thanks. Yep. The good ole paper trail.

Tim,

I forgot to mention because it's restricting parking on a public street, it can only apply to members of the HOA.

Glad to know there is also case law in MD. But, since you live in VA, that doesn't mean an attorney cannot cite case law in MO and MD. They do that all the time; case law does on only apply to the state in which the case cited took place. I do agree that you really don't know how a judge will rule unless you go to court. However, it appears that a lot of judges do give credence to the covenants and the fact that the members have agreed to them when purchasing property in an HOA.

For the past 3 legislative sessions AZ legislators have tried to pass a bill that would prohibit an HOA from restricting parking on public streets but to no avail. I'm sure there will be another bill in 2010 and hopefully it will fail too. There are too many HOAs with narrow streets which could cause safety issues if parking were allowed on the streets. I have it on good authority that many jurisdictions allow developers to build the streets narrower than city code simply because the HOA will restrict parking. These are some of the factors which have caused the bill to fail each year.

One would think. However, we've had previous attorney's tell us the same thing, and they were wrong, too.

The reality is that a development can impose parking restrictions through its governing documents on public streets that are within the parameters of the development.

The restrictions can be more restrictive than city/county code/ordinances, but they cannot allow things that the city/county codes/ ordinances do not.

And, again, they cannot and will not be enforced by local police.

The association must enforce them itself.

Marianne,

I would not recommend writing the fine policy into the CCRs. This should be a board-adopted rule as the BOD may want to change the fines from time to time.

FYI, below is my assn's fine policy. We're waiting on a draft of a new policy from our attorney so I haven't indicated the amount of the fines, but for parking violations, monetary fines are assessed daily. Amounts may vary depending upon the type of violation. Before a monetary penalty can be assessed, the member must be told that he has the right to meet with the board to discuss the violation, so this is done in the friendly reminder.

Policy:
1. The Association will send a Friendly Reminder giving an owner ten (10) days to correct the violation.
2. The Association will send a Notice of Violation. The owner will be given ten (10) business days to correct the violation.
3. The Association will send a Final Notice of Violation, indicating that the matter may be turned over to legal counsel if the violation is not corrected within ten (10) days.
4. If the owner contests the violation pursuant to statute at any time during this process, the Association shall respond by statute within ten (10) business days.
5. At any time, the Association may turn a matter over to legal counsel.

While it's true the P.D. will not enforce any CCR parking restriction, if a car is parked illegally per city code the P.D. will respond. Case in point: on several occasions I have reported a strange car (perhaps stolen or abandoned) parked in the neighborhood for several days. The P.D. responds immediately, checks the registration, calls the registered owner to remove the vehicle and puts a notice on the windshield. The car will be towed if not moved w/i 24 hrs.

Marianne:

In our case we also send an initial "courtesy" notice, in case the homeowner is unaware of the covenant and give them 24 hours to correct the violation.

If the vehicle continues to be parked contrary to the covenant, we send a second notice, this time stating the fines that will accrue.

If the vehicle continues to be parked contrary to the covenant after that, we begin the fine process and forward the information to our attorney, who also sends a "cease and desist" notice, and informs the homeowner that a lawsuit will be filed if the violation continues.

If the resident moves the vehicle, but then violates the same covenant at a later date, we treat that second violation as a continuing violation since notice has already been sent.

Ahh, it's all in the details. I bet you could hear the rattling of my brain when I read your reply at Posted:11/14/2009 12:15:14 PM ... until you clarified above that HOA's restricting parking on public streets could only apply to members. What a headline the former would have made in the papers, HOA prohibit public parking on public streets!

We have public streets, and there is a covenant addressing parking...must use garage, first then driveway. Some members wanted to restrict on-street parking on the public road. I thought it would be kind of funny if they did, especially for each of the members who's houses are located in the first few into the sub-division.

Just picture, these folks can't park on public street, but their close adjacent neighbours, who live just outside the HOA can park their mobile homes in front of the members' houses!!! Be alot easier for to find a space with the reduced competition for the parking spots!

It raises an interesting question. Where exactly does the HOA controls end? If they can control a members activity on non-HOA property, what are the limitations. ie. public property running thru the HOA, adjacent to the HOA, or how about the street in the next city etc etc. Why limit it just to parking, lets apply all the different ccrs that restrict member's activities to the public property. Enforcement would be fun, especially trying to figure out who is a member, a vistor of the member, or the public.

I'd love to read an actual court decision allowing a HOA to place restrictions on its members with regards to non-hoa propery, just to see how the judge addressed where that 'line' in the sand actually is drawn.

DJ,

FYI, copied below is the MO case. Hope you can find your answer therein. IMO, the HOA can restrict parking on any portion of it's property; but that restriction only applies to members of the HOA.

------------------------

12/17/96 MARYLAND ESTATES HOMEOWNERS' ASSOCIATION

[1] COURT OF APPEALS OF MISSOURI, EASTERN DISTRICT, DIVISION TWO

[2] No. 70105

[3] 1996.MO.23586 , 936 S.W.2d 218

[4] December 17, 1996

[5] *MARYLAND ESTATES HOMEOWNERS' ASSOCIATION, PLAINTIFF/RESPONDENT, v. KAREN PUCKETT AND CHRIS SCHALLERT, DEFENDANTS/APPELLANTS.*

[6] Appeal from the Circuit Court of St. Louis County. Hon. Robert Campbell.

[7] Gerald M. Smith, Judge, Crane, P.j. and Pudlowski, J., concur.

[8] The opinion of the court was delivered by: Smith

[9] Defendants, Puckett and Schallert, appeal from a summary judgment granting plaintiff, Maryland Estates Homeowners' Association, an injunction prohibiting defendants from parking Schallert's truck in their driveway and on the streets of the subdivision. We affirm.

[10] Puckett is the owner of a home in the Maryland Estates subdivision. Schallert resides with Puckett. Schallert owns a one ton truck which he parks either in the driveway of the house where he resides or on the street in front of the house. The plat establishing the subdivision provides that the "streets are dedicated to the City of Maryland Heights for public use forever." The Indenture of Trust and Restrictions preclude the regular parking of trucks or commercial vehicles in streets, yards or driveways in the subdivision. "Trucks" do not include pickup trucks of 1/2
ton or less.

[11] The Association brought this action to enjoin Puckett and Schallert from parking Schallert's truck in the residence driveway and on the street in front of the residence. Defendants concede that the truck cannot be parked in the driveway. Their only contention on appeal is that because the streets have been dedicated to the public, the Association has lost the power to control their use. They rely upon City of Camdenton v. Sho-Me Power Corp., 361 Mo. 790, 237 S.W.2d 94 (Mo. 1951) for the proposition that a dedicator cannot attach conditions or limitations inconsistent with the legal character of the dedication or which exclude public control of the property.

[12] City of Camdenton might be applicable if the Association were attempting to restrict the accessibility of the streets to members of the public who are not residents of the subdivision, but that is not the case here. The Indenture of Trust and Restrictions is a contract to which each homeowner becomes a party when acquiring property in the subdivision. Kauffman v. Roling, 851 S.W.2d 789 (Mo.App. 1993)[1,2]. By acquiring the property the owners agree to the terms of the restrictive covenants contained in the Indenture. It is agreed by the parties that persons residing in property in the subdivision are equally bound. The Association is seeking enforcement of the promises contained within the Indenture to which defendants have agreed. Defendants agreed that they would not park a truck regularly on the streets of the subdivision. They have breached that agreement and have insisted on their right to do so in the future. An
injunction was the proper remedy to prevent such actions in the future.

[13] The court awarded the Association attorney's fees in the amount of $3000. Defendants challenge that award on appeal. Attorney's fees may be awarded to a successful litigant where provided for by contract. Harris v. Union Electric Company, 766 S.W.2d 80 (Mo.banc 1989)[5]. The Indenture, a contract, provides for such an award. The court properly made the award. We need not address the issue briefed by the defendants that the language of the Indenture authorizes an attorney's fee award whether the Association wins or loses and that such a provision is against public policy. Here the Association won.

[14] Judgment affirmed.

[15] GERALD M. SMITH, Judge

[16] Crane, P.J. and Pudlowski, J., concur.

DJ,

I should have said, "An HOA can restrict parking on "public streets"; but that restriction only applies to members of the HOA."

True, the covenants DO apply to members and their guests, except for parking on public streets. And, those restrictions can apply to not only the HOAs common areas, but also a members' private property.

Public streets may not be property of the HOA, but because the HOA members agree to the covenants when purchasing, they must also abide by restrictions applying to parking on public streets.

It's not an "imaginary" line. That line is mentioned specifically in the detailed description of the development. That "line" would be delineated by the legal description of the boundaries of the development.

The streets within the development are "public," in our case, the county is responsible for the upkeep, maintenance,including such things as snow removal, etc.

However, the CC&Rs can restrict parking on those streets, that fall within the legal boundaries of our development. The homeowners agree to that restriction, just as they agree to all of the covenants, when they take title of their lot. Local police will not enforce our parking restrictions, but we can.

Excuse me Mary, but no where does it say in the court decision or elsewhere in this thread (other than what Michele just posted) as why certain public streets can have prohibited parking to members, while others can't.

If I understand, it seems that only the land that formed the 'block' that eventually makes up the HOA/Roads/common elements which subsequently become public road, would be impacted.

I am trying to visualize how such a restriction would affect roads that run on the border where the HOA is on one side, and non-HOA properties on the other side (across the street). Think of a line drawn on a piece of paper in the shape of a square. The line represents the road. The HOA development is on the inside of the line, and the non-hoa is on the outside. So I (non-hoa) can park on either side of the line, but the HOA member couldn't park inside the line but could park on the outside of the line even though it is the same public street.

I understand how it can work for a public street running THRU the HOA, just not how it would work for those members who live at the transition along the outside.

Trying to understand something that is so obvious to you, doesn't mean I'm not using common sense!

Seriously, DJ, I really am getting the impression you're just trying to be argumentative here.

I will take our development as an example, since we have exactly the situation you are talking about.

At the back end of our subdivision, there is a T-intersection.

On the south side of the T, are two lots that are part of the legal description for our subdivision. They are the corner lots leading out of the subdivision.

Directly across the street are three-homes in a row that are NOT part of the legal description of our subdivision.

The road and ditch directly abutting the corner lots is part of our legal description, given all the easements, etc.

The association homeowners cannot park their vehicles overnight or over 4 hours on the side of the street abutting their lot. Nor can they park RVs or trailers there.

However, the people owning the lots directly across the street, not being subject to our covenants can park as long as they want and whatever they want (within city/county zoning codes).

We (the board) gets calls all the time from people "reporting" one or another of those three non-HOA homes as violating the parking restrictions.

We have to continually remind people that those properties are not part of the HOA and are, therefore, not subject to our documents, therefore, we have no enforcement power or jurisdiction over their activities.

So, yes, one side of the street, restriction, other side, none.

It's highly unlikely someone is going to park in the middle, so hopefully you won't try to use that as a hypothetical!

Not trying to be argumentative....this time. Just trying to understand how a HOA would actually implement such a restriction for the more unique areas of the HOA.

You've just conveyed one aspect I was thinking would be a problem,... complaints that 'they're doing it so why can't I', that we often see as justification on many threads.

It is fine to adopt a rule but one needs to consider if it will achieve the desired goal, in full, in part, or not at all.

You said, "The road and ditch directly abutting the corner lots is part of our legal description, given all the easements, etc."

In order for them to be part of your legal description was the HOA constructed before or after the homes across the street?

If a road existed before a HOA such as yours as described, would it not be likely that the road is not part of the HOA legal description, thus allowing HOA members to park on the street on their side?

See? You are trying to be argumentative.

The legal description and plats show the road, but a dashed line, roughly one-third to one-half way out into the road, shows the development boundary.

The road that goes over top, all the way through to the curb, is "owned" by the local municipality and is maintained by them.

Have you ever looked at your neighborhood plat? Ours identifies the legal boundaries quite clearly, for description purposes, but the streets, pavement, etc, that go on top of that portion is owned by the city.

Bringing this back to the OP. I think you'd want to be sure that bringing in the parking restriction achieves your goal. You don't want motorhomes/rv's parked in front of homes. Now, if you happen to have streets like I am suggesting, and similar to what you Michelle have confirmed exist in your sub-division, how do you think it would go over bringing in the rule...and you've doubled the potential parking places for your non-hoa neighbour living across the street, who doesn't want to park their monster in front of their home and block their view...they can block yours now. So you may stop some parking but it won't be the cure-all you hoped for!