Covenant Question Please Help

Hi,

To make a long story short, I have lived in a new development in Alabama for 2 years now, when we first moved here the was supposedly a list of covenants (I do not have a copy nor have ever received one), the original construction company oversees everything in the development, there is no HOA nor has one ever been created. Over 90% of the lots have sold and have home owners in them. Well a month ago I received a phone call from the construction companies mother (he builds the homes she is a real estate agent and sells them, beyond that no clue what her supposed control is) that she had a complaint that we were parking one of our vehicles on the street. Something we have done on and off for the entire 2 years along with 3 other cars up and down our street. She proceeds to tell me this is against one of the covenants. NEWS TO ME!! In speaking with her further she proceeds to tell me the countless violations within the development. A party built an enormous shed in their back yard that does not resemble their home, but since it is not readily visible to all they aren't fussing about it. Our neighbor tore down their privacy fencing that is supposedly mandatory throughout the development, it is for security purposes that they were all attached one yard to the next. Our neighbor has a different mail box then everyone else on the street, they are supposedly suppose to be black and conform his is white. We have countless boats and rvs sitting in peoples driveways, and she told me the covenant states they can only be parked in their back yards. They are no rules about parking that I have ever seen and all the homeowners guests park on the street as well, and it is completely legal within the city limits to have a licensed vehicle on any public street, there are no signs stating there is a single no parking area in this development. These are public streets that are fixed by the city, and maintained by the city not by the development. There is no Home Owners Association in place and we not pay any kind of yearly fees.

After hanging up the phone with her a month ago, I got to thinking about everything she had told me and that is when we starting noticing other people parking on the street and continuing to do so, so we also continued to do so. This morning I received yet another phone call in which she was quite nasty, because someone had supposedly complained again. I personally think it is the construction company owner since he owns a house within the development. I asked her if they were ready to enforce the other violations and she told me they were petty in comparison. That I was endangering children with a parked car on the street, (is it my responsibility to teach other children not to run into a street, esp on a private neighborhood with very little traffic) I again asked if they were ready to make the home owners tear down the shed they put up that is in violation, or to go after the rvs and boats parked in driveways every single day. How about the mailboxes you told me were in violation. How are those any different then a legally licensed and parked vehicle? She had no answer for me and just continued to tell me she had a complaint and I needed to address it. I asked her what part of you don't get to pick and choose what you enforce and what you don't she did not understand. That of course made her very angry, and she told me I was accusing her of being stupid and that she wasn't . I told her that I am going to continue to park there and when they start enforcing all the violations then I will comply and park it in my front yard, in the exact same place only on my property, since that is not a violation. Am I wrong is it legal for them to pick and choose what they enforce and who they call and complain to? Am I legally obligated to park my car elsewhere? There is nothing in the rules about parking it on my property I told her I would park it in the same spot in my front yard. It is truly an issue for us, because there are 3 of us and we are all working and leaving on 3 different shifts daily. It is not feasible to park all the vehicles in my driveway, and with gas prices playing vehicle roulette 3 times a day that is what it would require with our 3 different work shifts. My sons and husbands vehicles have to be accessible at all times. One is federal law enforcement and on call at all times the other is medical and also called out quite frequently. These are very clean vehicles not unsightly junkers, like 2 others up the street. What can we do?

What could they legally do? Do they have to send some kind of certified mail due to a violation, or can they just decide to tow a vehicle after a verbal warning? I truly don't know what the laws regarding covenants in a development are, this is very strange, but AL does things their own way. I have lived in 2 other states (no I am not from AL, and this is temporary) with home owners associations and yearly dues. We had a board to address issues with, this is completely foreign to me. I look forward to any help you all can give me please? Thank you so much!!

Sincerely,
CarolR =o)

As for what kind of warning is required before towing, that is something you should contact the city about. I noticed you said the streets are private. Do you know this for sure? If not, then again the city can tell you for sure.

As for the covenants, the first place to look is in your closing papers. You should have received a copy of them at closing. Next look for something that acknowledges that the property has a mandatory HOA. Also, if you had a survey done then the survey should reference any encumbrances on the property to include the covenants.

Having said all of that, the person calling you should be able and willing to send you a copy of the covenants though they will likely charge some fee. Our management company charges $50 for replacement set of documents. We will soon have them online for free.

While you could perhaps win a battle concerning cars if they fail to enforce against others, you should consider the cost going in. The truth is that the cards are stacked very much against you.

An HOA board or PM MAY send copies to a homeowner who claims she doesn't have a set, but they are under no obligation to do so.

It would be in their best interests to do so, but in the end, it is the HOMEOWNER'S responsibility to obtain their own copy, even if it means going down to the county clerk's office or the deed room if the HOA decides they don't want to be courteous. Because providing a set to the homeowner WOULD be a courtesy, not an obligation.

Secondly, it's certainly "legal" for them to enforce against any CC&R (deed restriction) violation, but it would be a stronger case for them if it goes to court if they also enforce others and enforce consistently and equitably.

However, sometimes HOAs have to start somewhere. Do you really want to be the test case? That they will have a lawyer advising them on? Which means, more than likely, all they would need to do would be to send notices to the other "violators," to prove they are, in fact, moving to enforce consistently.

Then what?

You can only operate under the contract you have with your HOA, and that is through your covenants, and makes no difference if someone else is violating as well.

Having said all that, I can completely understand how angry you must feel and how unfair you think this is unfolding. Nobody, especially us grown ups, like to be told we're doing something wrong. It stings! Even if and when it's done nicely!

Marianne,

Have you checked Indiana state law? I would have asked the Deputy to cite the specific state law! City/county ordinance and, yes even State law, doesn't always overrule an assn's CCRs. But, yes, laws do differ from state to state. What I stated in my previous message is not AZ state law. What I said is that there is case law in other states which upholds the assn's right to restrict parking on public streets. HOA attorneys here in AZ know of this case law and advise their assn's accordingly. I know of no challenges in AZ courts.

George,

You wrote: "But as you have learned, if the street is a public right of way (not a private road), then the homeowners association has no authority to regulate parking."

Because it appears you choose not to believe what I've written I'm pasting the court decision that has become case law regarding parking on private streets in HOAs.

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.

Mary,

If I understand this correctly, the issue is not whether the state law overruled the covenant with respect to parking on a public street but rather whether the resident was in violation because he failed to comply with the covenant he agreed to. "By acquiring the property the owners agree to the terms of the restrictive covenants contained in the Indenture."

I have to take issue with you. It is not a question of a specific law, it is the absence of any specific statutory or case law authority that enables a private organization to govern public right of ways.

The courts in Indiana have held that "Indiana law permits restrictive covenants but finds them disfavored and justified only to the extent they are unambiguous and enforcement is not adverse to public policy." When courts are called upon to interpret restrictive covenants, they are to be strictly construed, and all doubts should be resolved in favor of the free use of property and against restrictions.
http://www.in.gov/judiciary/opinions/pdf/11170605ewn.pdf

Marianne,

The court based their decision on the restrictions contained in the CCRs. The ruling had nothing to do with whether or not there was a state law addressing this issue. In AZ there is no law which states HOAs can or cannot restrict parking on private streets. However, AZ HOA attorneys are looking at this MO case law when advising their boards. Case law in one state is often looked at when deciding a case in another state. So just because IN has not ruled on this issue doesn't mean a court in IN would not use the ruling from MO when deciding a case. That's why it's called case law.