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| Author |
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GlenL
(Ohio)
Posts:1223
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| 06/14/2008 10:32 AM |
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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
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HaroldS
(Arizona)
Posts:904
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| 06/14/2008 11:15 AM |
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"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. |
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BrianB
(California)
Posts:1591
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| 06/14/2008 12:51 PM |
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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). |
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MicheleD
(Kentucky)
Posts:1445
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| 06/14/2008 12:55 PM |
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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
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MaryA1
(Arizona)
Posts:1562
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| 06/14/2008 3:42 PM |
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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. |
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