Parking overnight on public streets

Sandra, were the streets built by the developer and dedicated to the city with a provision to retain the rights to enforce the Covenants? If so, the answer is probably yes. If the CC&Rs were not preserved on the plat map, it depends. You can enforcement the CC&Rs but if you mean would a judge rule in favor of the HOA? Possibly.

I would make sure that all violations and notices for each case are documented and reasonable prior to reaching the level of going to court and that the risk/reward merits such action.

Harold, can you cite the legal reason for your first statement "In Arizona the HOA can control parking on city streets."? Would you mind stating which city you reference?

The same is true in Kentucky.

While the municipality (either the city, county or state) owns and maintains the roads within a development, if the governing documents (deed restrictions) were filed with the plat by the developer and accepted by all deed owners (by virtue of their purchasing the lot within the subdivision) then the HOA CAN enforce the parking restrictions.

Now, that does not mean that the local police will enforce for you; you must enforce them yourself.

You governing documents should give you the procedure or outline generally how you can enforce the restrictions, all of the restrictions, including any parking restrictions.

Ours says we can tow, but as a matter of prudence, we don't tow until we reach the point where we take them to court to get an injunction or restraining order prohibiting them from parking per our documents. Included in that is a condition of towing as well, if they continue to park, since they are then not only in violation of the governing documents but also in contempt of court.

The reason we do that is not because we CAN'T tow just based on our docs, because we can. But we generally don't do it till we get a court order allowing us to for insurance purposes or in case of attempts to claim damages or theft of items from the vehicle. It just gives us an added layer to defend against.

Any HOA attorney will advise the BOD that they have the right to restrict parking on public streets because that restriction is contained in the assn's CCRs. True MO law applies to MO, but case law from other states is used by judges when forming an opinion. That's why it's called case law. And, I don't believe there would be a need for state law to prohibit HOAs from restricting parking on public streets if it was already against the law to do so!

Am I right in thinking you've been getting violation notices for parking on the street?

Robert,

Simply because most people who I've heard complain about and question this restriction have received violation notices.

Martin,

Copied below is the court case I referenced. It is the MO court of appeals, not AZ.

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.