Street Parking and City Streets

We are a small, non-gated HOA community. Our Restrictions were amended and voted on by 70% of the HOA to prohibit on street parking, as well as some other vehicle related issues, however, no fines or penalties were ever added as a way to enforce these rules. This amendment was done about 14 years ago.
Technically, these are City owned & maintained streets. Our HOA's recorded, governing documents state more prohibitive rules than that of the City's regarding vehicles.
Our Declaration of Use Restrictions, Article XI. Conflict of Restrictions with City Ordinances, states, "In the event of any conflict between these Restrictions and Ordinances of the City, the most restrictive shall govern".
Where do we stand legally? Can an HOA over ride City Ordinances? Is it worth pursuing making an amendment adding fines or would we be wasting our time and money? Isn't the HOA Board still responsible for attempting to enforce any recorded, governing documents?
By the way, nothing in any of our DCCR's says we can impose fines or penalties, the only recourse is that a homeowner can sue another homeowner to make them comply or to recover damages.

Brad

Sorry, but you seem to contradict yourself.

In the 1st paragraph of your reply you say they cannot control city maintained streets but in the next paragraph you say HOA regulations can be "harsher" then city regulations.

I am making an assumption. The HOA did not build on (shall we say possess) existing city streets but built the streets in their HOA then got the city to accept the streets so they can have tougher parking regulations on "their" streets.

If I am wrong, please correct me.

Thanks.

"I am making an assumption. The HOA did not build on (shall we say possess) existing city streets but built the streets in their HOA then got the city to accept the streets so they can have tougher parking regulations on "their" streets."

Thanks for your replies!
This neighborhood and HOA is 15 years old now. Now that I think of it, the City annexed large areas of what was once part of the county back in the late 1990's. Maybe this is how the HOA was able to prohibit on street parking? Once the City annexed our neighborhood, maybe we lost our option to prohibit on street parking and we don't even know it? I will have to look into that.

Hi Kathy:

I agree with Tim it depends on your state laws. I recommend you check both your state statutes and also with your local city government planning department. They could give you an idea of whether or not the city is receptive to HOA’s governing the “city owned” property. My city frowns on HOA’s attempting to control city owned property. Their view is if you do not own the property you do not have the right to regulate the property and hinted that they can join any lawsuit to protect citizen’s rights regarding the use of public property.

Also, after you check on whether you can have this provision in the Declaration your HOA needs to decide whether or not they want to enforce. If it is not going to be enforced then it needs to be voted and removed from the Declaration. This is so that the HOA is protected down the road from a disgruntled homeowner suing because the documents are not being enforced. Not only as you stated can owners sue each other, but they can sue the HOA so protect yourselves. A good rule of thumb is enforce any provision in the Declaration or the members vote to remove.

Kathy,

Resolutions are the formalization of a Board decision.

How resolutions are adopted will depend on your governing documents. No matter how they are adopted, they typically are not enforceable until published to the membership.

Resolutions may not be in conflict with any of the governing documents or State/Federal laws.
If challenged, Resolutions do not have as much value in court as an amendment to the governing documents would.

Our procedure for adopting resolutions is:

1. Proposed Resolution provided at board meeting.
2. At next board meeting board makes changes to proposal and sets date for hearing of the resolution
3. Draft Resolution and meeting notice is sent to to the membership
4. Meeting is held and membership provides feedback and/or suggestions (no vote is taken)
5. at next board meeting, board discusses membership feedback and makes changes as necessary.
6. Resolution is prepared for voting and signatures
7. Board votes on Resolution and, if adopted, signs resolutions
8. Adopted Resolution is printed and sent to the membership OR notification of failure to adopt is published.
9. Per VA law, Membership may call a meeting to amend or repeal the resolution (this is the only time the membership would vote on the resolution).

Hi Kathy:

My personal view is I am against an HOA regulating “public” streets. If you do not own, pay taxes, and pay to maintain and improve the property then you should not regulate the property. On the other hand if you have private streets and pay to maintain and improve then you have every right to regulate the use of your private property.

I tend not to review TX statutes unless an individual can give me certain sections which their documents fall under. TX puts things like this section applies if you are in a county of X population or city of Y population. Therefore, difficult to know if would apply to each individual. What I will do is use MY state statutes to show why this may or may not be a good idea and you can look at similar areas in your statutes:

In my state the definition of a “Common Interest Community” is:

(8) "Common interest community" means real estate described in a declaration with respect to which a person, by virtue of such person's ownership of a unit, is obligated to pay for real estate taxes, insurance premiums, maintenance, or improvement of other real estate described in a declaration. Ownership of a unit does not include holding a leasehold interest in a unit of less than forty years, including renewal options. The period of the leasehold interest, including renewal options, is measured from the date the initial term commences.

My HOA does not regulate “public” street, but if they did and wanted to get into a fight with me I would not argue based on the CCR under contract law. I would argue based on the State Statutes and who owns the property. Per the definition if we do not pay to maintain and improve then it is not part of the “Common Interest Community” property. I would also expect my city to join in to perform their duty to protect my rights as a citizen regarding regulation and use of “public” property or I would add them (after all they own the property). Now the question would be who potentially has best chance to win the homeowner and City or the HOA. My money would be on the entity who owns the property.

This is becoming a problem in many HOA’s and your HOA needs to determine if the battles are worth fighting and what is your ultimate chance of winning the battles. Depending on how they are fought and under which laws, end results can vary.

The HOA rules are a private, civil contract between the people who sign.

Thus, as long as the contract doesn't violate laws, then whatever two people (or a people and a corporation) agree to, can be enforced.

So, if people signed into the HOA, or voted to restrict their own parking on public streets, then yes, it can be enforced. The HOA can't stop ME from parking there, because I never signed the contract. The City can (as the owner of the street), but not the HOA.

So yes, if it was properly done, then the HOA can enforce, on its members, the rules about parking. But not on the general public.