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Subject: CRR vs. County Ordinances - parking on street

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GlenL
(Ohio)

Posts:3622

06/14/2008 10:32 AM
Ed I would recommend http://www.hindmansanchez.com/ this is the website of one of this forums sponsors and an excellent source of information. Although it is geared for Colorado I have used many of their ideas for our HOA. They also have an e-newsletter. BTW welcome to HOATalk

Your board meeting is not held in the Situation Room of the White House. It's not life or death. Let people in, keep it positive, then go home and get a good night's sleep. If you hold off drinking until after the meeting, instead of before or during, you're probably doing OK. JosephW

HaroldS
(Arizona)

Posts:904

06/14/2008 11:15 AM
"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.

BrianB
(California)

Posts:2480

06/14/2008 12:51 PM
Posted By EdB1 on 06/14/2008 9:56 AM 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. You are correct in your example, because punching someone is assault, and i believe no court will uphold as binding any contract between two parties that violates a law. The HOA cannot ALLOW something to occur that is illegal by higher statute. For instance, in Kansas, the German Thistle is a noxious weed, i believe. Although a pretty flower, it is illegal to allow it to grow on your property, by state law. An HOA could not enforce a rule that REQUIRED people to grow a German Thistle in their flower bed, since that would be illegal. On the other hand, they could enforce a covenant that stated "no sunflowers will be planted or allowed to bloom", since there are no statutes prohibiting that (similar to parking: no statutes prohibit parking, but the HOA does).

MicheleD
(Kentucky)

Posts:4491

06/14/2008 12:55 PM
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

MaryA1

Posts:0

06/14/2008 3:42 PM
Posted By EdB1 on 06/14/2008 8:08 AM 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)? Ed, Many assn's have this restriction in their CCRs. What it means is that these vehicles are not to be seen if you're standing in the street or if you are in a neighboring lot. They cannot be parked on the driveway or in the street. If parked behind the wall they cannot extend above the height of the wall. In other words, these vehicles are to be hidden from view -- period. I don't know if there is case law in CO, but I do know there is in MO where the appellate court upheld the HOAs right to restrict parking on the street even if it is a public street. Judges mostly use property law to justify their decisions. The CCRs are a restricted covenant and the restrictions contained therein are agreed to when purchasing the property. This is the reasoning the courts give.

KathyR5
(Texas)

Posts:13

02/04/2012 8:04 AM
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?

MelissaP1
(Alabama)

Posts:2215

02/04/2012 11:35 AM
KathR I would make this a new post so it can be addressed better individually. However, it sounds like a situation where you have your apple and oranges mixed up. Our HOA used to have private streets but became public due to an individual water meter situation. Our documents still had rules regarding the privacy and parking restrictions. This meant we had to CHANGE our documents to reflect this change in status. So your documents may still have parking restrictions in them but they may not be valid due to the situation. Once your roads are PUBLIC it is up to the PUBLIC utility/police to control and enforce laws on them. This doesn't mean the HOA loses control on their roads. It just may mean modifying your documents to reflect the "publicness" of your roads and going through the city to make restrictions. Your HOA may need to go to the city council and request an ORDINANCE to be approved for your specific need/area. We had to do this due to the roads being too narrow and not up to City Code when adopted into their system. We went to the CODE department of our city and they allowed us to paint our curbs instead of installling "No parking" signs per city code. This way we didn't violate our No sign but For SALE/RENT policy. So we now have painted curbs of red for no parking and blue for handicap. The police can then enforce the law for parking in those areas. We also had to redraft our CC&R's to reflect this change and took 75% vote of the membership. A time consuming expensive project that is well worth it in the end. I believe a HOA should update their documents every 5 -7 years to reflect lifestyle and technical/environmental changes. This road issue could be a catalyst to do such.

Former HOA President

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