CRR vs. County Ordinances - parking on street

We are experiencing the same thing. Our MC told us that we can not enforce the covenants restricting vehicles from parking on county owned public streets. I’ve talked the local police department and was informed that they will not respond unless a car is parked facing the way direction, parked within 50’ of intersection, or parked in front of a fire hydrant.

I’ve written the following letter, but before sending out I would like feedback. Maybe both of us could benefit from the feedback. You may see some wording I found here at HOAtalk.com

letter:

Over the past few months I have received calls and emails concerning vehicles parking on the streets in Trilogy Park. Our Covenants (CC&Rs) does cover vehicles parked in our community, more on that at the end of the email. On the night of June 5th, after receiving the last email concerning vehicles parked on our streets, I drove the neighborhood to count the number of vehicles parked on the streets of [neighborhood name].

One car parked in the street generally does not affect the aesthetics of [neighborhood name] but I counted 16 that evening. When we have cars parked along the streets, our streets become an obstacle course and an eyesore, as well as a safety issue, by restricting the line-of-sight of drivers in [neighborhood name], not to mention the egress of emergency vehicles, such as an ambulance or fire truck.

Our CC&Rs are intended to reduce negative impact to the value of the homes in [neighborhood name]. In this case, it not because ONE homeowner’s car may or may not be an eyesore or a safety issue to someone else, or may or may not "bother" ONE neighbor. In fact the CC&Rs were not created for the ONE homeowner but for the entire community. And again, while ONE car may not have a negative impact, 5, or 10, or 16 will be an eyesore, and therefore, affect the value of our homes.
As for safety concerns associated with vehicles parked on the streets, [neighborhood name] is a family-oriented neighborhood. As we are closing in on the completion of a new phone directory, we have 533 children 14 and under living and playing in [neighborhood name]. We also have 52, 15 & 16 year olds, eligible to drive, with less than one year of experience. I am not, however, singling out the less-experienced drivers; as any of us could be distracted long enough for a person to run out from behind the view of a parked car. We have small lots and narrow, tree-lined streets, giving people less time to react to people crossing the street, especially when a car could be reducing the line-of-sight of the driver.

Please do not park in the streets, no matter how inconvenient it may be to use your driveway. It is a violation of our CC&Rs. Each of us signed acceptance of these legal documents at closing, and we are all required to abide by them.

If you see a repeated occurrence of this violation please call our managing company at [number] for reporting. As with all calls made to our managing company your name will remain confidential. Please do not call your board member with these violations since we do not police our neighborhood for CC&Rs violations.

Article IX (Use Restrictions and Rules) Section 10 (Vehicles and Parking) includes the following:

- Owners and Occupants are prohibited from parking on yard areas, along the roadways of the Community, or on any exterior parking space located on the Common Property for any period of time.

- If any vehicle is parked on any portion of the Community in violation of this Section or in violation of the Association's rules and regulations, the Board or agent of the Association may place a notice on the vehicle specifying the nature of the violation and stating that after twenty-four (24) hours the vehicle may be towed. The notice shall include the name and telephone number of the person or entity that will do the towing and the name and telephone number of a person to contact regarding the alleged violation. If twenty-four (24) hours after such notice is placed on the vehicle the violation continues or thereafter occurs again within six (6) months of such notice, the Board or agent of the Association may have the vehicle towed in accordance with the notice, without further notice to the Owner or user of the vehicle.

- If a vehicle is parked in a fire lane, is blocking another vehicle or access to a Lot, is obstructing the flow of traffic, is parked on any grassy area or the roadways, or otherwise creates a hazardous condition, no notice shall be required and the Board or agent of the Association may have the vehicle towed immediately, if a vehicle is towed in accordance with this Section, neither the Association nor any officer or agent of the Association shall be liable to any person for any claim of damage as a result of the towing activity. Towing shall be conducted at the sole cost and expense of the violating Owner or Occupant, and all costs shall be added to and become part of the assessment obligation of the Owner and shall become a lien against the Lot. Notwithstanding anything to the contrary herein, the Board may elect to impose fines or use other available sanctions, rather than exercise its authority to tow.

On behalf of the TPCA advisory committee and the board of directors,
Bruce Downs
TPCA - President

one thing I am curious about regarding this theme: everyone signed a contract, i believe, that stated what they were and were not allowed to do when they purchased in the HOA. THey voluntarily gave up some of their rights in order to live in the community. Perhaps they gave up the right to plant male olive trees in their yards, or paint their home bright red, or host loud parties after 11 pm, or park their car on the street.

regardless, everyone agreed, by contract, to NOT do some things that legally, they could do if they lived elsewhere and hadn't signed an agreement.

So why can't an HOA say "You agreed to these terms in your contract with us, and these are the agreed upon penalties for not following those terms." Why would an MC state that you can't enforce certain parts of a legal contract?

Thanks to eveyone for your feedback! This is the first time I have used this site and alreay see the benefit!

Bruce ~ I think I will use a similar "letter" in our next newsletter.

I still think we need to leave it in the CRR. As stated, they agreed to abide by them when they bought the home.

Stacy

Great point. Now what? Maybe it's the intent of the rule? By the way our streets are not marked with signs stating no parking. Could "No Parking" signs be the solution? Or maybe something like "No Parking from 6PM - 6AM" which will allow delivery vehicles, etc.

Michele -
I am on the Board and I don't appreciate being called "lazy", especially by somebody who has no way of knowing what I do for my community.

Our Board has looked at that restriction several times since we took over from the developer three years ago, and we agree that in our case the restriction is poorly written. Even the developer who originally put it in our docs admits that it is a problem. Yes we have the right to tell homeowners that they aren't allowed to park in the streets (or even in the driveway according to our docs), but as I mentioned we can't tell people from outside of the community that they can't park there unless we post all of the streets as "No Parking". Since our rule doesn't have any type of time limit, we can't really say that guests are only there for a short time. According to the rule cars can't be parked on the streets at all, but again without putting signs up all over the neighborhood, we can only enforce that rule on homeowners. However unless we maintain our own vehicle registration system, we have no way to tell which cars belong to owners and which ones belong to guests. So we either have to enforce the no-parking restriction on everyone, or we can't enforce it on anyone. Until it becomes a big enough problem to cause enough homeowners to want to re-write the rule, our Board has pretty much decided that we can't really enforce it on anyone.

However we can and do enforce the restriction when it is obvious that a vehicle has not moved for quite some time (junker cars and such that are being "stored") and we don't allow trailers or RVs at all beyond a short period for loading and unloading. But we would have a hard time with passenger vehicles (homeowner or guest owned) that are apparently parked for a short period.

The HOA can and should enforce the community restrictions but I would suggest you talk with your Associations Atty as to how to effectively accomplish this. If your doc's allow fines for violations that would be my first approach after of course written warnings because having a vehicle towed from public property where there are no public laws forbidding the act could put the Association into litigation.

If the community is not concerned with the appearance of vehicles lining the streets than propose an amendment to the Doc's to permit parking with some reasonable restrictions of things like time of day or duration and put it to a vote.

If you can not get anything done about it, I would at least send a letter to residents advising them of the inability to enforce this covenant (as per Atty), request their volunteer cooperation and informing them of the hazards and dangers of parking along the street (like children at play) to reduce the amount of exposer of liability to the Association.

In MD, at least some counties have ruled that HOA's have no right to regulate parking on public roads, even if they run through subdivisions.

I'm not an attorney, but I'm going to take a different viewpoint on this. CCRs are essentially a set of legal documents attached to the deed of a homeowner's property and place restrictions on either (a) certain aspects of the property they purchased and to which the deed refers, or (b) restrictions based on their membership in the HOA which owns certain other elements. I don't believe that CCRs can restrict lawful activities by anyone upon property which neither the homeowner nor the HOA owns.

The streets in your community that you don't own are really no different than any other property (for example a public park that similarly you don't own) that neither the HO or the HOA owns. Thus your CCRs trying to enforce a parking restriction are akin to saying that when you buy a property in your community, you agree that you can't for example park overnight on Main Street in your town.

If my logic has flaws, I'd been interested to better understand .. .. ..

In Kentucky they have ruled just the opposite.

Now, we can't regulate parking of the GENERAL PUBLIC, but we CAN regulate the activities of the homeowners who are members of the association through which the public roads exist.

Here is a case that went through the NJ appellate Court:

"The roads of many associations are public. In fact, associations generally attempt to "dedicate" their roads to the particular municipality. "Dedication" allow associations to avoid costs associated with roads and the portions of the water/sewer systems situated underneath them because these costs are shifted to the municipality. One drawback associated with "dedication" has always been the ability of the association to enforce its rules and/or covenants, with respect to the roads, once those roads become public. For instance, can an association still enforce a restrictive covenant prohibiting commercial vehicles without Board written approval on roads that were once private, but have since become public?
Until recently, the answer to that question was unclear. However, a New Jersey Appellate Court recently held that a homeowners association was empowered to enforce its ban of commercial vehicles with respect to the public roads situated within it. The court in Verna v. Links at Valleybrook Neighborhood Association, Inc., agreed with the association that its rules and covenants governed certain lands and that so long as those lands were within the area "covered" by the association, they were subject to the association's and covenants, regardless of whether those lands were public or private. The Court further agreed that such parking-related covenants do not interfere with the government's regulatory powers.

The association conceded, as probably all associations must given the current state of the law, that its authority over the public roads extended only to court orders, injunctive relief and the like - that is, because the roads are public, only the government can, for instance, tow a commercial vehicle off a public road, parked in violation of an association's rules and/or covenants. In turn, this decision means that an association can get a court order compelling the owner of a commercial vehicle to remove that vehicle from a public road. However, it does not mean that an association itself can tow the offending vehicle from the public roads."

Gloria, thank you, that is very much what I've been trying to articulate.

We have the ability to tow, once we obtain a court order allowing us to in each specific instance.

That does not mean that people will necessarily force the enforcement to that point in each case of parking violators. An HOA generally only has to reach that point once or twice.

What happens is that once the neighbors realize that a court will allow us to tow, and that they will have limited ability to claim damages because of it (which they CAN do if we don't obtain a court order first), then it becomes more convenient for them to obey the restriction than to try to force us to get to the point of towing.

It also helps that in those cases where the association has to go to court to get the court order allowing towing, the homeowner is also ordered to pay for the cost of litigation!

. . . even on "public" streets.

Brian, yes, you are right, to a degree.

The problem is, at least according to our attorney, it's much easier to avoid having to pay for a "broken" transmission, "stolen" CD player, "stolen" camera, etc etc etc that a homeowner might claim went missing and/or broken when you have a court order in hand.

I'm just relaying what many attorneys recommend regarding how to proceed even when the remedy to two is in the restrictions.

Joe,

Tell that to the judges in MO and NJ!!

Interesting discussions. I am new to this site.

So, if the covenants said that the speed limit was 15 mph, and the county said it was 25mph, because everyone signed the covenants then you must go no faster than 15 mph or face the wrath of the HOA?

Seem to me that just because something is in the covenants does not make it legal, it just means it's in the covenants.

We have a current issue in our HOA in Colorado. The covenants regarding parking of vehicles are very brief and vague, stating in 2 sentences that members are not to park trailers, boats, farm equipment, mechanical equipment, etc .... such that they are visible from the street or from other lots.

Note it does not say what can be parked IN the street, only what is visible FROM the street. Of course, it could be argued that visible from other lots covers IN the street.

Any comments? Anyone know anything specific to Colorado law (which I have been unable to find online)?

Brian

I understand your argument completely; I myself believe that also (within limits). I am actually on a HOA board and I am playing devil's advocate here.

However, I still maintain that just because something is in the covenants, which the resident signed, that does not make it legal. Each state/county is probably different in this regard. You use the reasonable example of pets. No argument there, if you live in a place with a lease prohibiting pets. But to use a ridiculous example, you could not enforce a covenant that states that a HOA member may punch you on the arm every time your yard had weeds in it. So, I think it depends on what the covenant is and where you live.

I was looking for cases specific to Colorado.

"What happens is that once the neighbors realize that a court will allow us to tow, and that they will have limited ability to claim damages because of it"

I'm curious why there would be "limited ability to claim damages" just because there is a court order to tow.

Credibility issues.

According to the attorney.

Once you win a court order, the judge hearing the complaint on damages is less likely to feel the alleged damaged party is as credible as the party who went to court to prove the violation was legitimate and consistent, and that you did "due diligence," thereby the homeowner was amply warned and given oddles of opportunity to cease parking, etc etc etc. So even if there were damages from the towing, he is less likely to recover from it since he was under an injunction not to park there anymore.

If you just tow, without the court order, the H/O has a greater likelihood of convincing a judge that he was not given sufficient warning, that the towing might have been capricious and that there was limited or no due diligence.

I have no first-hand knowledge of either scenario, I'm just basing this on what our attorney said HIS experience has been.

In HOAs where they tow first and ask questions later, he is less successful defending them (the HOA) against a homeowner's claims of damages from the towing, even when the docs allow for towing as a recourse for enforcement.

In HOAs where the board first gets a court order allowing them to move ahead on their ability to tow (which is granted in their governing docs), he has a greater success rate defending against homeowners to allege damages from the towing.

Frankly, I just took his word (and experience) for it and didn't really get into too much of a philosophical discussion about it. He was, after all, "on the clock"! LOL

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.
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".
Technically, these are City owned & maintained streets, yet we have these recorded, governing HOA documents. Where do we stand legally? By the way, we have no fines or penalties in our DCCR's, except that one homeowner can sue another homeowner to make them comply or to recover damages.
Is it worth pursuing adding fines if we technically can't enforce this anyway?