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StacyC1


Posts:0


06/12/2008 6:54 AM  
Our CRR's do not allow parking on the street for over 24 hours. However, it is not against the county ordinances to park on the street (unless you are blocking traffic).

Some on the Board think that we are opening ourselves up for litigation and need to remove the "no parking on the streets" from the CRR's. Something to do with someone getting in an accident due to a parked car imparing vision and them suing the HOA because they didn't enforce the CRR's.

Does anyone know anything about this? I feel if we remove it, we will have cars parked everywhere. It is not only unsightly, but unsafe as the roads are all curved!
Stacy
BruceD1
(Georgia)

Posts:59


06/12/2008 7:08 AM  
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
MaryA1


Posts:0


06/12/2008 7:14 AM  
Stacy & Bruce,

Golly, this issue continually comes up. There is case law in MO and one other state but I don't recall which one which upholds the HOAs right to enforce no parking restrictions on public streets. The reason being: The CCRs are agreed to when moving into an HOA. One thing to remember is that the CCRs can be more restrictive than city/county code they; just cannot allow something that is against city/county code. Restricting parking on public streets is a really big issue mainly because many feel the HOA has no authority to rule over something they do not own. However, don't they "rule" over various issues pertaining to a member's property that the assn doesn't own? Bottom line: the CCRs rule and the BOD has the authority to enforce them!
BrianB
(California)

Posts:2803


06/12/2008 7:19 AM  
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?
MaryA1


Posts:0


06/12/2008 7:23 AM  
Brian,

Probably because the MC doesn't want to do her job. Perhaps there are a lot of "no parking" violations thus creating more work for her. "you can't do it" can translate into "I don't want to do it"!
StacyC1


Posts:0


06/12/2008 7:52 AM  
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
DwightT
(Idaho)

Posts:664


06/12/2008 8:30 AM  
Bruce - I'm going to steal your letter.

However, one of the problems that we have run into with the parking issue is that while homeowners agreed to the rules (including the parking restrictions), guests from outside of the community did not agree to those restrictions. So how do you tell somebody from outside of the community that they can't park on a public street? The City got in trouble a few years ago for towing cars from parking areas that were not well marked as restricted parking. I would imagine that there would be a lot of trouble if we towed "guest" cars from the public streets unless all the streets were well marked as "No Parking", and I wouldn't want to have to put up a bunch of signs all over the neighborhood.

BruceD1
(Georgia)

Posts:59


06/12/2008 9:03 AM  
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.
MicheleD
(Kentucky)

Posts:4491


06/12/2008 9:25 AM  
Why are you making it harder than it needs to be?

If there is a guest of a resident, that person has to follow the rules, too.

So the resident needs to make sure his guests don't run afoul of the CC&Rs.

Parking for parties in our subdivision usually isn't a problem.

Our parking restrictions don't say "no parking on the street EVER" but for certain longer periods of time: over 4 hours or overnight.

Generally parties are so infrequent that even if they go 6 hours, no one is likely to complain.

However, if someone is visiting a homeowner for a week, say, then they must park in the driveway or off-site somewhere.

Now, back to my point, you aren't "controlling" the street, per se, you are "restricting lot owners' use" of the street. Which, as courts have acknowledged, even though they are public rights of way, they fall within the geographic legal definition of what the HOA can legally enforce and control against.

But since your "contract" is with the lot owners (members) it is only them who are restricted by your CC&Rs.

That is why police won't enforce neighborhood CC&Rs.

The Neighborhood Associations have that role.

We have a lake. People from other areas come and park all day on our streets to fish in the lake.

We cannot regulate or tow them.

that's just the way it is. We have to accept that.

But we CAN enforce against someone who lives in our subdivision from parking there all day.

If your MC or your board says otherwise, they are just being lazy.

They don't want to expend the time, energy or money that it takes to maintain the integrity of your documents.

And if that's the case, I would do what I could to replace either or both with people who DO care about maintaining the integrity of the governing documents.

DwightT
(Idaho)

Posts:664


06/12/2008 10:06 AM  
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.
MicheleD
(Kentucky)

Posts:4491


06/12/2008 11:19 AM  
Sorry, Dwight, if the shoe fits. . .

Now, seriously, I'm not directing my comments SPECIFICALLY at you. I would never do that and please don't consider it a personal pronouncement of you as an individual. However, the board as a whole might need to do a little self-reflection on it as it does appear there might be a tad bit of voluntary inaction on your board's behalf.

Why do I say that?

Here: " 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. "

Now. It's easy, and the path of least resistance, for the board to simply throw up its collective hands and say, "this doesn't make any sense and this is too hard to enforce," and talk about non-residents, guests, peppering the neighborhood with "No Parking" signs (which, by the way, even though you CC&Rs might disallow parking, your city works department might get a little peeved about you enforcing against the general public. Those signs probably wouldn't be allowed anyway, but that's another topic.)

What would be the appropriate, and diligent, and probably more actionable (and require more than just sitting in the board meeting bemoaning how hard the restriction is to read)?

I wonder.

Oh here's an idea. Why not CHANGE THE RESTRICTION TO ONE THAT IS EASIER TO UNDERSTAND AND ENFORCE.

See? It's been 3 years since the take over. Certainly within 3 years someone could have done the research and work to construct such an amendment?

Now, if you tell me that your documents don't allow for amendments, then I stand corrected. However, the odds are they do allow for amendments. It may take a little effort and sweat equity to follow the amendment procedure and get the requisite votes to change, but if the board isn't doing that, then they have, indeed, opted for the avenue of least effort.

Sorry.


LisaB11
(Florida)

Posts:5


06/12/2008 11:40 AM  
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.
BrianB
(California)

Posts:2803


06/12/2008 11:48 AM  
note the fine line/thread in Michele's post:

you really can't stop John Doe, complete stranger, from parking in a public street, even in your contractual neighborhood. You have no leverage, no punishment for him. If he wants to park and enjoy the shade while he has lunch, there's not much the HOA can do (on a public street)

You CAN talk to Jane Smith (owner) about the people who visit her parking in the street: you have a contract with jane that hopefully is worded so that owners have limited their rights to use the street to their benefit. Again, you cannot punish Janet Doe for parking and visiting, but you could punish Jane SMith for not dealing with her visitors per the contract.

BrianL
(Maryland)

Posts:23


06/12/2008 12:14 PM  
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.
KirkW1
(Texas)

Posts:1665


06/12/2008 12:41 PM  
I am going to take a different view all together. If parking has become a problem, maybe you should look to amend the rules to eliminate the restriction.

The HOA exists to serve the members. It has not other function (after turnover) and the majority rules (though sometimes we raise the bar). If parking is an issue, then you should find out what the owners want. If you believe that the required number of people will vote to eliminate the restriction from the CC&R, then the board should put forth the amendment. But find out what the people want. You were elected to represent them and you can't do that without input.

You could also look into going after the developer for not having properly enforced the covenants setting the transition board up for failure. But legal fights are really no fun and nobody really wins.

Another option, is to look to your city council to pass an ordinance that fits with what you want. That is their job. In my city they restricted daytime parking to less then two hours while school is in session on a few streets near the high school. The thing is that you have to look deep enough to find the real problem and focus on that problem.

Get the neighbors involved. I would not want to serve on a board should I be expected to spend my free time policing the neighborhood. Then again, I wouldn't want to live in one that wanted that kind of board.
JohnO6
(Georgia)

Posts:424


06/12/2008 12:43 PM  
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 .. .. ..
BrianB
(California)

Posts:2803


06/12/2008 1:10 PM  
Posted By JohnO6 on 06/12/2008 12:43 PM
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 .. .. ..




It's a good arguement. Now, for the other side: The agreement is a civil agreement between two consenting "adults" (the hoa and the owner). WHat tenet of law would forbid two people from making a contract that would preclude one party from park on main street (or performing any other activity) if they agree to it without duress? Employers, for example, frequently have such contracts in place with employees: to remain employed, you agree not to do drugs, for example. The employer doesn't care WHERE you do them, you both sign an agreement/contract that you won't.

If you and I agree that I will pay you $10 a month as long as you don't smoke a cigarette on your property, and i catch you smoking in the city park, I still owe you $10 for the month: the agreement was no smoking on your property. But if you and I agree that I will pay you $10 a month as long as you don't smoke, and i catch you anywhere smoking a cig, then you lose your $10 that month.

If these owners signed a contract to not park their cars on the city streets in front of their homes, then why aren't they bound to follow that contract?
MicheleD
(Kentucky)

Posts:4491


06/12/2008 1:35 PM  
Posted By BrianL on 06/12/2008 12:14 PM
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.





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.

MicheleD
(Kentucky)

Posts:4491


06/12/2008 1:40 PM  
John, it's a good thing you are not an attorney, because your client would be very upset with you now for moving forward with the suit that was destined to fail.

Again, the HOA cannot regulate and restrict the GENERAL PUBLIC from certain activities on the roads that run through their subdivision, (which is one reason why the HOA cannot install on its own "No Parking" signs) that are owned by the county or city, but they can, and courts have upheld, their ability to enforce restrictions that regulate members of associations from engaging in certain activities (such as parking overnight) on those same roads.



GloriaM
(North Carolina)

Posts:829


06/12/2008 3:04 PM  
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."

MaryA1


Posts:0


06/12/2008 4:46 PM  
Gloria,

Thank you for posting this info; a part of which reads: "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."

I have been making this argument for quite sometime now but I seem to recall an earlier thread on this forum where some posters stated they can, and do, tow vehicles from public streets. It's always been my opinion that although the HOA can enforce the no-parking restriction, they do not have the authority to tow vehicles from public streets.
MicheleD
(Kentucky)

Posts:4491


06/12/2008 5:24 PM  
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.

BrianB
(California)

Posts:2803


06/12/2008 6:07 PM  
i would imagine the only time an HOA could tow a car in that situation without the civil remedy/court order was if their covenants spelled that out as a remedy, just like they typically do fines/fees.

If it were part of the contract/deed restriction/covenant, then it should be as legal as a monetary fine. After all, if you agree to it when you buy the home...
MicheleD
(Kentucky)

Posts:4491


06/12/2008 6:21 PM  
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.

JoeC6
(Florida)

Posts:11


06/13/2008 8:49 PM  
New here but just humor me for a min.
What makes anyone think that just because the ccr's say no parking on the street that you can actually enforce that on a public right of way. If the streets belong to the city/county then you have no authority over them. If the vehicle is parked legally according to state/county/city statutes etc then they have the right to park there.
MaryA1


Posts:0


06/14/2008 6:27 AM  
Joe,

Tell that to the judges in MO and NJ!!
BrianB
(California)

Posts:2803


06/14/2008 7:36 AM  
Posted By JoeC6 on 06/13/2008 8:49 PM
New here but just humor me for a min.
What makes anyone think that just because the ccr's say no parking on the street that you can actually enforce that on a public right of way. If the streets belong to the city/county then you have no authority over them. If the vehicle is parked legally according to state/county/city statutes etc then they have the right to park there.




what makes someone think that is that the individual signed a legal, binding contract that required that they do not park on said streets. It's not criminal law, it's civil law, and even worse, it's contract law.

the reason it may be enforceable is that the parties signed a written contract that said it was.

EdB1
(Colorado)

Posts:2


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)?
BrianB
(California)

Posts:2803


06/14/2008 8:37 AM  
the first take on that Ed would be that parking a trailer IN the street violates your covenants, and the owner could be fined (if that is allowed by your covenants). A trailer parked in the street is obviously visible from the street, so it breaks the rule.

think about it this way Ed... when you move into an apartment, perhaps the lease you signed stated NO PETS. Now, the county and state say you can own a pet: you can own ten of them if you want. But, you signed a binding contract with the owner of the apartments that you wouldn't have pets.

Similar thing here: when you bought your property in Colorado, you signed a contract with the current owner that you would agree to a set of rules, called the CC&R's. In fact, that agreement is binding in the deed to the property, so it must be transfered as part and parcel of the property. If you didn't want to agree to not parking a trailer on the street, you should have looked further for a home, and found a place without that restriction, just like you would not rent in an apartment complex that didn't allow pets if you wanted dogs.
EdB1
(Colorado)

Posts:2


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.
GlenL
(Ohio)

Posts:5052


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

"Common sense is like deodorant--the people who need it most never use it."
HaroldS
(Arizona)

Posts:906


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:2803


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:24


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:4747


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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Forums > Homeowner Association > HOA Discussions > CRR vs. County Ordinances - parking on street



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