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Subject: Concerning "commercial vehicles"
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QuahT
(North Carolina)

Posts:41


09/25/2012 8:33 PM  
Our HOA currently has this rule:

"Spaces are to be used for parking automobiles and passenger trucks only. No commercial
vehicles may be parked in any assigned or visitor spaces."

We recently had one complaint (out of 180 townhouse owners) of an owner having a commercial vehicle parked in her space.

The vehicle being complained about is a company car that contains some company logos on it.

Our compliance person notified the homeowner that she was in violation of the rule pertaining to commercial vehicles.

The homeowner replied that she did not consider her car a commercial vehicle, and that she thought it was clear the intent of the rule was to limit the parking of large vehicles used to haul cargo, dump trucks and the like.

A lot of discussion took place amongst the board, and I can see where she is coming from. The rules do not define commercial vehicle, and the ordinary definition is "a vehicle for carrying goods or (less commonly) passengers". Our state has a specific definition also, and it does not include passenger cars. Some board members believe that any vehicle with advertising on it is a commercial vehicle.

I'm somewhere in the middle. The board lawyer said that we can define commercial vehicle any way we would like. The CCR's give the board the authority to set rules at its discretion - which is fine of course - but I'm not sure if that extends to changing the definition of words in those rules after the fact.

After some further discussion, we voted to change the rule to say "No commercial vehicle will be parked in any assigned or visitor space in the neighborhood on a regular basis. A commercial vehicle is defined as any vehicle that is adorned with advertising and/or transports any products, equipment, and/or people for a business purpose." I voted against that particular wording, however the vote passed. I think "regular basis" mean nothing, and I think to define a commercial vehicle as a vehicle that transports products for a business purpose is a mistake that would include any company car (without logos) that transports products sold by that business. "adorned with advertising" could include nearly any sticker.

The homeowner also mentions that she has been parking this same vehicle in her spot for almost 14 months. The complaining resident has lived in the community for over 15 years - I'm not sure why he chose to make a complaint at this time.

We (the BOD) sent her a letter telling her that she has 30 days to remove the vehicle due to the violation. Her response was the same, that her vehicle is not a commercial vehicle, and that she would like to address the BOD. I have talked with her personally and she is prepared to take this to court if needed. This is a company car supplied by her employer, and she would have to purchase a vehicle if she was not allowed to park it.

Like I said above, I'm somewhere in the middle, leaning to the intent of the rule being as she said, to prohibit large vehicles - not cars with logos.

Comments? Thoughts? Opinions? I'd appreciate any input anyone might have.
GlenL
(Ohio)

Posts:5491


09/25/2012 9:00 PM  
A lot of people who have posted similar problems here have come up with a compromise of requiring the driver to place plain magnetic panels over the signs to hide them or requiring a car cover. Does NC require commercial plates for commercial vehicles?

Studies show that 5 out of 4 people have problems with fractions
QuahT
(North Carolina)

Posts:41


09/25/2012 9:26 PM  
Posted By GlenL on 09/25/2012 9:00 PM
A lot of people who have posted similar problems here have come up with a compromise of requiring the driver to place plain magnetic panels over the signs to hide them or requiring a car cover. Does NC require commercial plates for commercial vehicles?




Thank you for your reply.

Yes, NC requires commercial plates for what it considers commercial vehicles. And this is the rub, so to speak. The homeowner claims that without further definition, the commercial vehicle mentioned in the rules would be based on the definition from the NC DOT, or simply the ordinary definition.

We have discussed the car cover issue, and the cover with magnets issue. She, tongue in cheek, asked if the magnets she used to cover could say "xxxxxxx homeowners association made me put this sign on my car", or if she could use a glow-in-the-dark pink car cover. As I said, I get her point - she could buy a $300 junker and park it in her space that would be 100 times the eyesore. Sometimes I don't understand why we (the BOD) don't realize that we can also tell the complainer that we don't consider it a violation and leave it at that.
QuahT
(North Carolina)

Posts:41


09/25/2012 9:38 PM  
I wanted to add one more comment I forgot to mention in the original post.

I voted against the wording of the reworded rule -

"No commercial vehicle will be parked in any assigned or visitor space in the
neighborhood on a regular basis. A commercial vehicle is defined as any vehicle that is
adorned with advertising and/or transports any products, equipment, and/or people for a
business purpose.".

but it passed anyway.

As we left the meeting, I couldn't help but notice the vehicle of another board member - a Nissan pickup truck. The bed of the truck has one of those large "diamond plate" tool boxes - he is a contractor. Wouldn't his own vehicle be considered a vehicle that "transports ... equipment ... for a business purpose"?

This is one of the reasons I voted against it - I think it will just cause more trouble down the road.
GlenL
(Ohio)

Posts:5491


09/25/2012 10:38 PM  
If your COA is typical, the vehicle probably also violates your sign rule.

Studies show that 5 out of 4 people have problems with fractions
QuahT
(North Carolina)

Posts:41


09/25/2012 10:57 PM  
Posted By GlenL on 09/25/2012 10:38 PM
If your COA is typical, the vehicle probably also violates your sign rule.




The only sign rules we have pertains to "For Sale" signs.
FredS7
(Arizona)

Posts:927


09/26/2012 4:50 AM  
> The board lawyer said that we can define commercial vehicle any way we would like.

This is the key. Have a discussion, have a vote (which seems to be what you have done). Then move on.

(You may be moving on to a definition of "regular basis.")

QuahT
(North Carolina)

Posts:41


09/26/2012 5:18 AM  
Posted By FredS7 on 09/26/2012 4:50 AM
> The board lawyer said that we can define commercial vehicle any way we would like.

This is the key. Have a discussion, have a vote (which seems to be what you have done). Then move on.

(You may be moving on to a definition of "regular basis.")





Thanks for the reply,

I sort of understand why the lawyers said that, but I also don't understand how practical that is. If we have the power to define words as we see fit, how can anyone know if they are following the rules or not? Maybe next year we will decide that all Toyotas will be considered commercial vehicles, and while we have the power to do so, it just doesn't seem right.

I talked with the homeowner a little this morning (she lives in the next building). She explained that if she agreed to our ruling she would have to purchase a car, and park her company car at her place of employment which is over 30 miles away, and everyday drive to switch cars and come back to our area where she does business. I'm having a hard time looking her in the eye and backing our decision, especially after 14 months. Ugh.
LarryB13
(Arizona)

Posts:4099


09/26/2012 5:20 AM  
Are these spaces deeded to individual owners or are they common area? Do your cc&r's give the board power to restrict parking?

You may be opening a Pandora's Box. Every car parked in your parking area most likely carries some advertising on it. License plate frames advertising a car dealer. A decal or plaque fixed on the trunk lid. Bumper stickers for the local pizza joint. A car used to run an errand for the owner's employer using his own car now falls under the definition of commercial vehicle.

QuahT
(North Carolina)

Posts:41


09/26/2012 5:40 AM  
Thank you for your reply.

The spaces are common area, and each homeowner is assigned two spaces for parking. The CCR's (partly) state "The Board of Directors of the Townhouse Association may make such reasonable rules and regulations as it may elect with respect to the parking of vehicles.."

I agree about the pandora's box - see my comment above about another board members pickup, which now clearly falls under the definition. Also, oddly enough, the new definition excludes much of the state definition. Under the new definition, a homeowner could park a dump truck in their space as long as it did not contain advertising and they didn't use it for business purposes. It defeats what I've thought all along was the original intent of the rule, to prevent the parking of large vehicles.
BruceF1
(Connecticut)

Posts:2535


09/26/2012 5:51 AM  
Quah,

Let's see - - according to your BOD an unmarked automobile used by a real estate agent to take clients to look for houses for sale now drives a commercial vehicle. A representative for a pharmaceutical firm that travels to doctor's offices and carries samples of that firm's medicines now drives a commercial vehicle. The same is true for the employee of any company that carries product samples to clients. How about the Avon Lady? Since she carries Avon products in her car for potential customers to try she must also be driving a commercial vehicle. How about the person who sells jewelry at home parties? The Tupperware salesperson? I'm not talking about people who may be visitors to your community, I'm talking about people who may be engaged in these kind of activities and live in your community and therefore park there on a "regular basis."

What a stupid definition!
MikeS1


Posts:521


09/26/2012 6:01 AM  
QuahT - In the case of the diamond plate toolbox, you could argue that many people have these who are not contractors and they just have them for their own personal use. I think the key here stems from "Visable Commercial Equipment". Note also that we had a problem with owners parking their own vehicles in their own spaces during the day since they would say that they were having work done to their own homes (in perpetuity?) so we added the language below "who is contracting their services". These two clauses have served to have taken a lot of the gray area or guesswork out of the equation since initially we had a very general clause in our original docs. This issue of a commercial definition has been beat to death in this forum.

"Tradesmen. Vehicles of companies making repairs, replacements, deliveries, etc., are permitted between 7 a.m. and 9 p.m. Companies needing all-day parking should park in visitor spaces or the homeowner’s designated parking space. No overnight parking of commercial vehicles is permitted. The term "commercial vehicle" is defined in Section xxxx below. During normal daytime business hours (7 am to 9 pm), a commercial vehicle owned by a company which has been contracted to provide service within the community may park in any visitor space and/or the reserved space of the driveway of the owner who is contracting their services. Commercial vehicles may not be parked in fire lanes or other non-designated spaces within the community.

Commercial Vehicles. - Parking of commercial vehicles in open view within the community is not allowed. A commercial vehicle is defined as any vehicle that (i) bears any visible commercial advertising signs, names logos, dealer tags, letterings or initials (not including bumper stickers or similar sized stickers); or (ii) is used, or intended for use, as a car for hire or a work vehicle, which may be evidenced by open carriage of pipes, lumber or other work-related construction, equipment, machinery, materials or ladders, including but not limited to ladder racks, pipe racks, tools or other equipment; or (iii) vehicles designed or intended for use as commercial buses, cargo vans, express vans, delivery vans, flatbeds or trucks used for any other purpose other than for private/consumer use. Advertising is defined to include, but not be limited to the display of a company name and/or product name and telephone number and/or email address."

QuahT
(North Carolina)

Posts:41


09/26/2012 6:19 AM  
Posted By MikeS1 on 09/26/2012 6:01 AM
QuahT - In the case of the diamond plate toolbox, you could argue that many people have these who are not contractors and they just have them for their own personal use. I think the key here stems from "Visable Commercial Equipment". Note also that we had a problem with owners parking their own vehicles in their own spaces during the day since they would say that they were having work done to their own homes (in perpetuity?) so we added the language below "who is contracting their services". These two clauses have served to have taken a lot of the gray area or guesswork out of the equation since initially we had a very general clause in our original docs. This issue of a commercial definition has been beat to death in this forum.

"Tradesmen. Vehicles of companies making repairs, replacements, deliveries, etc., are permitted between 7 a.m. and 9 p.m. Companies needing all-day parking should park in visitor spaces or the homeowner’s designated parking space. No overnight parking of commercial vehicles is permitted. The term "commercial vehicle" is defined in Section xxxx below. During normal daytime business hours (7 am to 9 pm), a commercial vehicle owned by a company which has been contracted to provide service within the community may park in any visitor space and/or the reserved space of the driveway of the owner who is contracting their services. Commercial vehicles may not be parked in fire lanes or other non-designated spaces within the community.

Commercial Vehicles. - Parking of commercial vehicles in open view within the community is not allowed. A commercial vehicle is defined as any vehicle that (i) bears any visible commercial advertising signs, names logos, dealer tags, letterings or initials (not including bumper stickers or similar sized stickers); or (ii) is used, or intended for use, as a car for hire or a work vehicle, which may be evidenced by open carriage of pipes, lumber or other work-related construction, equipment, machinery, materials or ladders, including but not limited to ladder racks, pipe racks, tools or other equipment; or (iii) vehicles designed or intended for use as commercial buses, cargo vans, express vans, delivery vans, flatbeds or trucks used for any other purpose other than for private/consumer use. Advertising is defined to include, but not be limited to the display of a company name and/or product name and telephone number and/or email address."





Thanks for suppling your definition.

I see you exclude bumper stickers, but don't limit how many can be used. Have you had any issues with that? It appears that a homeowner could cover their car in bumper stickers and be in compliance. I also see that you don't mention anything about covering any advertising - is this an option that you allow? Or do you consider the car to still contain the advertising even if it is covered?

Not trying to be argumentative, just trying to not open that pandora's box. It seems that we are including advertising in the definition because of the eyesore factor. Yet, a car covered in Bondo and rust and unpainted is allowed, but far more of an eyesore. Just trying to understand how to strike a balance here.
MikeS1


Posts:521


09/26/2012 6:40 AM  
QuahT - Just because the rule was not enforced before, does not mean that you cannot enforce it now. Also, this vehicle is not owned by the resident. It is provided by the employer for the owner's use. This usually means that the owner has at least one or two other cars. I don't know about your community, but in our area (even in new communities), parking is very limited. There are only 2.3 spaces per household in our community and so there is really not adequate spaces for personal and commercial vehicles. This is and always be an contentious issue.
JohnC46
(South Carolina)

Posts:11507


09/26/2012 6:46 AM  
I say a typical family car with advertising on it is a commercial vehicle. In one HOA we would not allow them to be parked overnight in one driveway, but as each home had a two car garage one could park it in the garage. We had an issue of two identical mini-vans. One a soccer mom van, the other a limo service with signs all over it. The limo one was ruled commercial. They did not like it but they cleaned out their garage and parked it in there. eend of problem.

Now the OP has a different issue which is they have only outside parking available (I am assuming this?) so I believe they have to approach it a bit different. They cannot approach it as simply as we did.

I think they may have to look at a vehicle as having a combination of things such as size, weight, signage, dressing, licensing, etc. before they claim it as commercial vehicle. It will get tricky. Example: I drive a Ford F150 but neighbor drives same F150 but his has ladders hung off it.

Question to the OP. Do you have any open spaces say a bit out of the way (like down the end of the lot) that could be marked as commercial vehicle parking? At least get them aways away.

To those saying well that state rulings says so and so, keep in mind an association can have tighter restrictions. Typical exmaple is local rules say no fences higher then 8ft and an association can say no fences higher then 6ft.

Hope this helps.





MikeS1


Posts:521


09/26/2012 7:00 AM  
Not just any bumper sticker.... It reads "Commercial... bumper stickers" - We don't care about political or other non-commercial bumper stickers, but it's for "Joe's Remodeling", that's a different story.

We have had vehicles that used solid cover magnectic covers to put over the advertisement and that's ok. If we can't see the ad, that's fine. The rules restricting commercial vehicles (by virtue of the advertisement) has been very common for some time. As more and more communities have tightened their restrictions, we saw the migration or movement of commercial vehicles in various communities and finally even the county placed restrictions on state maintained roads in areas that are zoned residential.

Fairfax Supervisor Jeff C. McKay (D-Lee), chairman of the County Board's transportation committee, said he pressed for the measure because he views it as a public safety issue. Large vehicles often block sightlines for drivers and pedestrians, making it difficult to maneuver on narrow residential streets.

"To the homeowner who can't see their kids walking down the street because a camper is in the way, they don't want some lame excuse that we can't do anything about it," McKay said.

Vehicles more than 21 feet long or eight feet tall are barred from parking on residential streets. The law also requires taxis and limousines to be properly registered with the state and limits those vehicles to one per home. See article link below.
http://www.washingtonpost.com/wp-dyn/content/article/2010/02/01/AR2010020103348.html

We're running out of real estate Quah - Land is a little scarce up here.
QuahT
(North Carolina)

Posts:41


09/26/2012 7:32 AM  
Posted By MikeS1 on 09/26/2012 6:40 AM
QuahT - Just because the rule was not enforced before, does not mean that you cannot enforce it now. Also, this vehicle is not owned by the resident. It is provided by the employer for the owner's use. This usually means that the owner has at least one or two other cars. I don't know about your community, but in our area (even in new communities), parking is very limited. There are only 2.3 spaces per household in our community and so there is really not adequate spaces for personal and commercial vehicles. This is and always be an contentious issue.




Thank you. I understand that we can still enforce a rule that wasn't enforced in the past. I think the rub here is the homeowner believes she was following the rule all along - using the common definition of commercial vehicle since the rules didn't state any other definition.

You are correct, the homeowner does not own the vehicle. However, she does not own any other vehicles. As I said above, she lives in the building next to me, and has been here for more than 10 years. When she was given the company car to drive, she sold her vehicle. Each homeowner is assigned 2 parking spaces, so space is not an issue.

I'm trying to get to the bottom of the intent of defining commercial vehicles in this way. I think that is the only way to understand how to create a rule.
MikeS1


Posts:521


09/26/2012 7:40 AM  
Even under the old definition, I don't think that there was any question that this was in fact a commercial vehicle. Everyone seems to have their own definition of commercial vehicle and all that matters is what you all decide to put into effect in your rules.

When you mentioned "Car" vs "truck", I remember when we went through this and noted that it's difficult to define a "car" or a truck any more with all the mini-vans, cross-overs, pickups like the Avalanche etc. Good luck.
TimB4
(Virginia)

Posts:17766


09/26/2012 7:45 AM  
Are the signs magnetic?

My association has reached several agreements with owners that if they remove the magnetic signs when they park the vehicle, it can be parked within the community.

As others have said, we have also reached arrangements with those who did not have magnetic signs but were willing to purchase magnetic signs the color of their vehicle to cover up the commercial messaging.

QuahT
(North Carolina)

Posts:41


09/26/2012 7:45 AM  
Posted By JohnC46 on 09/26/2012 6:46 AM
I say a typical family car with advertising on it is a commercial vehicle. In one HOA we would not allow them to be parked overnight in one driveway, but as each home had a two car garage one could park it in the garage. We had an issue of two identical mini-vans. One a soccer mom van, the other a limo service with signs all over it. The limo one was ruled commercial. They did not like it but they cleaned out their garage and parked it in there. eend of problem.

Now the OP has a different issue which is they have only outside parking available (I am assuming this?) so I believe they have to approach it a bit different. They cannot approach it as simply as we did.

I think they may have to look at a vehicle as having a combination of things such as size, weight, signage, dressing, licensing, etc. before they claim it as commercial vehicle. It will get tricky. Example: I drive a Ford F150 but neighbor drives same F150 but his has ladders hung off it.

Question to the OP. Do you have any open spaces say a bit out of the way (like down the end of the lot) that could be marked as commercial vehicle parking? At least get them aways away.

To those saying well that state rulings says so and so, keep in mind an association can have tighter restrictions. Typical exmaple is local rules say no fences higher then 8ft and an association can say no fences higher then 6ft.

Hope this helps.









Yes, this whole conversation is very helpful and I do appreciate all of the imput.

You are correct, we have only outside parking. Just to give you an idea, our complex is an older, yet nice, middle class/retired folk community. Mostly working class homeowners. It is not a fancy gated community, etc. That said, of course we still want to have a nice community. Just trying to give some perspective on how offensive certain thing might be.

To answer your question about the "away" parking, yes - we have a lot where people can park trailers or boats, etc. This area is basically unused. One issue with that is that it is not very secure as it sits in a secluded wooded area next to a public park. That suggestion was discussed by the BOD - however, it leads me back to my main concern here - intent. If we ask her to park in that area to "get away", then it is clear the intent of the rule is to prevent an eyesore, yet we don't have rules concerning true eyesores that would not fall under any definition of commercial vehicle.

I agree with you 100% that associations can have tighter restrictions. Part of my question here is what to do when the tighter restriction comes later? This is the part that I have a conflict with - that rules for 180 people can change if 5 people decide to do so. Using your fence example, let's say the rules state no fences higher than 8', and have said that for 15 years. Then, a few people on the BOD decide they want to change the rule to 6', and it passes on a 3-2 vote. Must now everyone who has a fence higher than 6' remove that fence?
QuahT
(North Carolina)

Posts:41


09/26/2012 7:53 AM  
Posted By MikeS1 on 09/26/2012 7:00 AM
Not just any bumper sticker.... It reads "Commercial... bumper stickers" - We don't care about political or other non-commercial bumper stickers, but it's for "Joe's Remodeling", that's a different story.




Again, not to be argumentative - but it does not read commercial bumper stickers. It says "bears any visible commercial advertising signs, names logos, dealer tags, letterings or initials (not including bumper stickers or similar sized stickers);" - not including bumper stickers, period, no?

Would a "Hello Kitty" sticker be allowed?
QuahT
(North Carolina)

Posts:41


09/26/2012 7:54 AM  
Posted By TimB4 on 09/26/2012 7:45 AM
Are the signs magnetic?

My association has reached several agreements with owners that if they remove the magnetic signs when they park the vehicle, it can be parked within the community.

As others have said, we have also reached arrangements with those who did not have magnetic signs but were willing to purchase magnetic signs the color of their vehicle to cover up the commercial messaging.





No, the signs are not magnetic. It is actually a wrap of some sort.
BrianB
(California)

Posts:2820


09/26/2012 8:21 AM  
I am glad you voted against that horrible definition, thank you for showing some sense. Too bad you were outvoted.

Last time I checked, nearly every vehicle I see has advertising on it.. Toyota on the tailgate, Ford or Dodge, or Chevy on the grill, etc. Does your new rule require owners to remove the words Civic, Corolla, Hyundai, F-150? If not, how do you rule that a big Ford Logo is not advertising?

What about license plate frames? Granted, I offer to leave mine on if the dealer pays me $500 when I buy the car (and they never do, and I always take it off and hand it to them before I leave the lot), but do you require that Hand's Motor Cars or Kiefe and Sons Chevy frames be removed? If I had a KC Chiefs sticker on my window, is that now a commercial vehicle? It is advertising.
GlenL
(Ohio)

Posts:5491


09/26/2012 8:30 AM  
Just how much advertising are we talking here? Something that could be easily covered with a plain magnetic sign or something more akin to NASCAR?

Studies show that 5 out of 4 people have problems with fractions
QuahT
(North Carolina)

Posts:41


09/26/2012 8:50 AM  
Posted By GlenL on 09/26/2012 8:30 AM
Just how much advertising are we talking here? Something that could be easily covered with a plain magnetic sign or something more akin to NASCAR?




It is a wrap of some sort, large magnets could cover the "brand" on the sides and hood. The background of the wrap is not a solid color, more of a design, but not "branded". So yes to both questions, lol.
QuahT
(North Carolina)

Posts:41


09/26/2012 8:52 AM  
Posted By BrianB on 09/26/2012 8:21 AM
I am glad you voted against that horrible definition, thank you for showing some sense. Too bad you were outvoted.

Last time I checked, nearly every vehicle I see has advertising on it.. Toyota on the tailgate, Ford or Dodge, or Chevy on the grill, etc. Does your new rule require owners to remove the words Civic, Corolla, Hyundai, F-150? If not, how do you rule that a big Ford Logo is not advertising?

What about license plate frames? Granted, I offer to leave mine on if the dealer pays me $500 when I buy the car (and they never do, and I always take it off and hand it to them before I leave the lot), but do you require that Hand's Motor Cars or Kiefe and Sons Chevy frames be removed? If I had a KC Chiefs sticker on my window, is that now a commercial vehicle? It is advertising.




I agree 100%. I guess it can be changed again - but that sort of goes to the point that the rules change, so how could anyone be expected to follow them?
PaulT6
(California)

Posts:409


09/26/2012 8:58 AM  
It is possible that whoever wrote your rule had size in mind? Logos, signs and markings can be somewhat of a negative visual impact but as mentioned above enforcement can get a little tricky. Sounds like your rules are fairly specific and that your Board has made their decision. I don't think the dealer's name on a license plate frame makes it a "vehicle used for business purposes", with the definition of "business" as any activity that generates revenue. Our rules state nothing with dual rear wheels or more than two axles, used for business purposes, may be parked outside overnight. If she has one, how about putting her car in her garage?

Paul T
QuahT
(North Carolina)

Posts:41


09/26/2012 9:17 AM  
Posted By PaulT6 on 09/26/2012 8:58 AM
It is possible that whoever wrote your rule had size in mind? Logos, signs and markings can be somewhat of a negative visual impact but as mentioned above enforcement can get a little tricky. Sounds like your rules are fairly specific and that your Board has made their decision. I don't think the dealer's name on a license plate frame makes it a "vehicle used for business purposes", with the definition of "business" as any activity that generates revenue. Our rules state nothing with dual rear wheels or more than two axles, used for business purposes, may be parked outside overnight. If she has one, how about putting her car in her garage?

Paul T




Yes, as I said above, she says exactly that, that the original rule was written with size in mind - not advertising.

I'm not sure how to define "Advertising.....for business purposes". Isn't any and all advertising for business purposes? Or would you define that if the operator of the vehicle was employed at the business being advertised, then it is business purposes - yet someone else, not employed at that business would be allowed to display the same advertising because that wouldn't be business purposes?
MoM1
(Massachusetts)

Posts:56


09/26/2012 9:56 AM  
I think your signage definition is at the base of this issue. Just what constitiutes "commercial"? The back window banner of the university the vehicle's owner's kid attends? The yacht club cling in the side window? The www.xxxxx.com strip across the rear bumper?
PaulT6
(California)

Posts:409


09/26/2012 10:14 AM  
I think it may be a case of "a vehicle used for business purposes", that being any activity that generates revenue. A logo or sign on the side or elsewhere may be for "identification" purposes, that being the customer identifies the vehicle with the firm they have chosen to do business with, rather than "advertising" to the public. In our case, signs ,logos, or not, if the vehicle is used to generate revenue it is considered "a vehicle used for business purposes" and over a certain size, it is prohibited. As mentioned earlier however, it sounds like your Board has made up its mind?

Paul T
QuahT
(North Carolina)

Posts:41


09/26/2012 10:23 AM  
Posted By PaulT6 on 09/26/2012 10:14 AM
I think it may be a case of "a vehicle used for business purposes", that being any activity that generates revenue. A logo or sign on the side or elsewhere may be for "identification" purposes, that being the customer identifies the vehicle with the firm they have chosen to do business with, rather than "advertising" to the public. In our case, signs ,logos, or not, if the vehicle is used to generate revenue it is considered "a vehicle used for business purposes" and over a certain size, it is prohibited. As mentioned earlier however, it sounds like your Board has made up its mind?

Paul T




Well, yes, as I posted above, we (against my wishes) have voted to implement that far reaching definition of commercial vehicle.

But as I said, I'm in the middle somewhat, and just trying to understand if the homeowner is being reasonable or not.

You bring up a good point about "generate revenue" - but I think that adds to my confusion. Do you mean generate revenue directly, as in, for example, it is used to deliver products the business sells, or simply that it is a "tool" of the business? Or do you mean generate revenue passively, as in it is advertising and creating sales?
PaulT6
(California)

Posts:409


09/26/2012 10:32 AM  
Basically, "tool of the business" fits pretty well. If the vehicle's use is part of generating revenue in any way we consider it a "vehicle used for business purposes".

Paul T
QuahT
(North Carolina)

Posts:41


09/26/2012 10:35 AM  
Posted By PaulT6 on 09/26/2012 10:32 AM
Basically, "tool of the business" fits pretty well. If the vehicle's use is part of generating revenue in any way we consider it a "vehicle used for business purposes".

Paul T




Interesting, and makes sense.

Just to clarify - if the car containing advertising was only used to transport the employee to and from an office, it would not be considered a commercial vehicle, correct?
MikeS1


Posts:521


09/26/2012 12:07 PM  
Sounds like you all might overcomplicating this. Remember 3 things about any rule that you're thinking about implementing.

The rule must be (1)easy to understand, (2) easy to implement and (3)easy to enforce.

BTW - No one cares about small Dealer Stickers (the small 2 inch stickers that the new car dealers use. Almost every car sold has one of these plastered on the rear of the car. .....or small dealer license frames or Redskins bumper stickers or Redskin flags, but if someone has company logos or company names on the vehicle, that's a different story.

QuahT
(North Carolina)

Posts:41


09/26/2012 12:40 PM  
Posted By MikeS1 on 09/26/2012 12:07 PM
Sounds like you all might overcomplicating this. Remember 3 things about any rule that you're thinking about implementing.

The rule must be (1)easy to understand, (2) easy to implement and (3)easy to enforce.

BTW - No one cares about small Dealer Stickers (the small 2 inch stickers that the new car dealers use. Almost every car sold has one of these plastered on the rear of the car. .....or small dealer license frames or Redskins bumper stickers or Redskin flags, but if someone has company logos or company names on the vehicle, that's a different story.





Overcomplicating is my specialty!

You are so right - but somehow in trying to develop a rule that fits those criteria, it seem to inevitably get complicated.

I will admit, as you can probably tell, I am not in agreement with the other members of the board on this entire topic. I might come off sounding like I'm just upset that I am outvoted, but I'm really just trying to apply some logic to these things. And some fairness - and treat people the way that I would want to be treated.

I don't think we are being fair in this at all. First, our rules had no further definition of commercial vehicle, and includes other DOT terms such as "passenger vehicles". So, if you were to read that rule, and see DOT terms such as "passenger vehicle" and "commercial vehicle", I can understand why anyone would consider the definition of those to be what the state has decided. I wasn't around when the rule was written, but it is clear to me that she (the homeowner) is correct - whoever wrote that rule was intending to prevent someone from parking dump trucks, busses, etc., in a parking space.

Second, a ten year resident - who has been a perfect homeowner up to this point - never an issue, never a late due payment, and a previous board member a few years ago - is suddenly faced with having to purchase a new vehicle over the complaint of one homeowner. This after parking the same vehicle for more than a year without issue. Yes, I understand that we can enforce at any point, etc. - but the question is - should we? And do we have anything to enforce?

Third, we (the BOD) decided to clarify the rule (change is more like it) - and to me, that indicates that we agree that the rule was either different or not clear. If the rule is good as it was written, why change it?

Fourth, the new rule is totally ambiguous - and leaves so much room for interpretation and confusion. I don't see how we will be able to enforce it without making further changes - and at some point we start looking like morons.

Fifth, I don't really care one way or the other about banning advertising, etc. - I just don't think any new rule should be applied retroactively to people who acted in good faith a long time ago. There are actually two other homeowners who have been warned about the same violation - though no homeowner complained about their vehicles specifically.

So, overcomplicate - yeah, probably. Maybe it's just more that I hate we are not doing the "right" thing. We have so many more pressing issues to deal with as a board.

Thanks to everyone for the discussion so far - I appreciate the chance to talk this through with other like-minded people.
PaulT6
(California)

Posts:409


09/26/2012 12:41 PM  
Posted By QuahT on 09/26/2012 10:35 AM
Posted By PaulT6 on 09/26/2012 10:32 AM
Basically, "tool of the business" fits pretty well. If the vehicle's use is part of generating revenue in any way we consider it a "vehicle used for business purposes".

Paul T




Interesting, and makes sense.

Just to clarify - if the car containing advertising was only used to transport the employee to and from an office, it would not be considered a commercial vehicle, correct?




If it has any connection with generating revenue and is provided by one's employer I would think it is a vehicle used for business purposes. I doubt that an employer would provide a vehicle just for commuting purposes. Likely, it would be used for pickup, delivery, customer contacts, or other business related purposes. As John said sometime back "If it looks like a duck ----".

Paul T
BrianB
(California)

Posts:2820


09/26/2012 2:36 PM  
Just to keep adding fuel... because I always believe that any legislature, having all the words of the English language available to them for free has a responsibility to write clear rules, and their failure to do so (ie, they are lazy) should be pointed out and ridiculed at every opportunity.

Using MikeS1's excellent rule of thumb about a rule, I would say this one doesn't qualify. It is not easy to understand, it isn't easy to enforce. Sounds like it was easy to implement, however.

Last time I checked, the Redskins were a revenue generating company. Advertising for them is no different than advertising for Mary Kay, Revlon, Bob's Wildcat Drillers, or Maury's Heating and Air Conditioning.

Paul, i can't speak for anyone but myself, but... My father drove a business supplied vehicle for years. As an insurance adjuster, he was given a car just for working the claims. I still remember the mileage logbook for it, and if he ever drove it for "personal use", he logged those miles into the book as well. There were no marking on the car at all, except for the normal logos all cars have. The only way you would know it was an insurance adjuster's car was the 30 foot fold up ladder in the trunk, and 3 boxes of case files in the back seat along with the clothes hanger bar across the back seat.

My neighbor currently drives a Ford Ranger that his company provides him for commuting and running company errands. Plain Jane tan truck, no markings at all.

My current plant manager has a big Ford truck, company supplied, as a commuting vehicle, and our previous plant manager had a Dodge CHallenger as his. Our environmental manager has a blue Explorer (no markings) as a business perk as well. So, there are several companies that provide plain old cars/trucks for employees to drive as part of their business and part of their perks.

I am not sure how an HOA could justify banning my boss's truck, because it is owned by a company, and allowing the exact same, identical truck, owned by someone else, because it is owned by an individual (heck, if there's a loan on it, even that truck is owned by a company).

If company/business ownership of a vehicle would make it 'commercial', where do leased vehicles fit? They are owned by a leasing company, correct?



PaulT6
(California)

Posts:409


09/26/2012 3:50 PM  
Posted By BrianB on 09/26/2012 2:36 PM
Just to keep adding fuel... because I always believe that any legislature, having all the words of the English language available to them for free has a responsibility to write clear rules, and their failure to do so (ie, they are lazy) should be pointed out and ridiculed at every opportunity.

Using MikeS1's excellent rule of thumb about a rule, I would say this one doesn't qualify. It is not easy to understand, it isn't easy to enforce. Sounds like it was easy to implement, however.

Last time I checked, the Redskins were a revenue generating company. Advertising for them is no different than advertising for Mary Kay, Revlon, Bob's Wildcat Drillers, or Maury's Heating and Air Conditioning.

Paul, i can't speak for anyone but myself, but... My father drove a business supplied vehicle for years. As an insurance adjuster, he was given a car just for working the claims. I still remember the mileage logbook for it, and if he ever drove it for "personal use", he logged those miles into the book as well. There were no marking on the car at all, except for the normal logos all cars have. The only way you would know it was an insurance adjuster's car was the 30 foot fold up ladder in the trunk, and 3 boxes of case files in the back seat along with the clothes hanger bar across the back seat.

My neighbor currently drives a Ford Ranger that his company provides him for commuting and running company errands. Plain Jane tan truck, no markings at all.

My current plant manager has a big Ford truck, company supplied, as a commuting vehicle, and our previous plant manager had a Dodge CHallenger as his. Our environmental manager has a blue Explorer (no markings) as a business perk as well. So, there are several companies that provide plain old cars/trucks for employees to drive as part of their business and part of their perks.

I am not sure how an HOA could justify banning my boss's truck, because it is owned by a company, and allowing the exact same, identical truck, owned by someone else, because it is owned by an individual (heck, if there's a loan on it, even that truck is owned by a company).

If company/business ownership of a vehicle would make it 'commercial', where do leased vehicles fit? They are owned by a leasing company, correct?








Brian,

Yes, it can become somewhat of a complex issue. Although we get complaints about "standard" sized vehicles with bright, gaudy, graphics covering the entire vehicle, we limit the size, no commercial vehicle with dual rear wheels or more than two axles, can be parked outside overnight on an ongoing basis. Other more "upscale" HOA's in our area do not allow any commercial vehicles with signage on them to be parked outside, regardless of size.

Paul T
JohnC46
(South Carolina)

Posts:11507


09/26/2012 4:43 PM  
Posted By PaulT6 on 09/26/2012 12:41 PM
Posted By QuahT on 09/26/2012 10:35 AM
Posted By PaulT6 on 09/26/2012 10:32 AM
Basically, "tool of the business" fits pretty well. If the vehicle's use is part of generating revenue in any way we consider it a "vehicle used for business purposes".

Paul T




Interesting, and makes sense.

Just to clarify - if the car containing advertising was only used to transport the employee to and from an office, it would not be considered a commercial vehicle, correct?




If it has any connection with generating revenue and is provided by one's employer I would think it is a vehicle used for business purposes. I doubt that an employer would provide a vehicle just for commuting purposes. Likely, it would be used for pickup, delivery, customer contacts, or other business related purposes. As John said sometime back "If it looks like a duck ----".

Paul T





If the vehicle does not have signage/advertisements on it, then in that sense it is not a commercial vehicle. So this carrying company personnel, brochures, sample products, etc. analogy/arguement does not hold water. My former company car (Ford Escape) with no signage, looked no different then anyone elses Ford Escape with no signage. Saying mine was a commercial vehicle is really, really reaching even though it contained business stuff like brochures, samples, etc.

In SC if one has a business license plate, it opens up some business only parking spots even though the vehicle is no different then an identical vehicle with no business license plate. Could one say two identical vehicles are different based solely on the license plate? Well if you are the letter of the law type versus the intent of the law type person, then the license plate alone could make it a commercial vehicle.

We had one HOA member complain that police cars with signage were commercial vehicles, so they must be parked out of sight.

People need to get realistic with their thinking especially if they are in a rules/regulation making position.









BrianB
(California)

Posts:2820


09/26/2012 7:17 PM  
As Paul no doubt knows (i see his HOA bans commercial vehicles with duallies, but not 'all commercial vehicles'), California considers any pick up truck to be a commercial vehicle. Got a Ford F-150? Toyota Tundra? Dodge Ram? Chevy Standard? Mitsubishi Raider? In California, you are driving a commercial vehicle, licensed and taxed as such.

LarryB13
(Arizona)

Posts:4099


09/26/2012 9:43 PM  
Posted By JohnC46 on 09/26/2012 4:43 PM

We had one HOA member complain that police cars with signage were commercial vehicles, so they must be parked out of sight.




We actually have a state law in Arizona that prohibits an association from barring police cars and other first-responder vehicles.

The full text is:

33-1809. Parking; public service and public safety emergency vehicles; definition

A. Notwithstanding any provision in the community documents, an association shall not prohibit a resident from parking a motor vehicle on a street or driveway in the planned community if the vehicle is required to be available at designated periods at the person's residence as a condition of the person's employment and either of the following applies:

1. The resident is employed by a public service corporation that is regulated by the corporation commission, an entity regulated by the federal energy regulatory commission or a municipal utility and the public service corporation or municipal utility is required to prepare for emergency deployments of personnel and equipment for repair or maintenance of natural gas, electrical, telecommunications or water infrastructure, the vehicle has a gross vehicle weight rating of twenty thousand pounds or less and is owned or operated by the public service corporation or municipal utility and the vehicle bears an official emblem or other visible designation of the public service corporation or municipal utility.

2. The resident is employed by a public safety agency, including police or fire service for a federal, state, local or tribal agency or a private fire service provider or an ambulance service provider that is regulated pursuant to title 36, chapter 21.1, and the vehicle has a gross vehicle weight rating of ten thousand pounds or less and bears an official emblem or other visible designation of that agency.

B. For the purposes of this section, "telecommunications" means the transmission of information of the user's choosing between or among points specified by the user without change in the form or content of the information as sent and received. Telecommunications does not include commercial mobile radio services.
PaulT6
(California)

Posts:409


09/27/2012 6:24 AM  
Posted By BrianB on 09/26/2012 7:17 PM
As Paul no doubt knows (i see his HOA bans commercial vehicles with duallies, but not 'all commercial vehicles'), California considers any pick up truck to be a commercial vehicle. Got a Ford F-150? Toyota Tundra? Dodge Ram? Chevy Standard? Mitsubishi Raider? In California, you are driving a commercial vehicle, licensed and taxed as such.





Brian,

Right, I owned two pickups that fell into that category. That is the reason our Committee used the term "vehicles used for business purposes" instead of "Commercial vehicles". Our rule also exempts vehicles used only for recreational purposes.

Paul T
BruceF1
(Connecticut)

Posts:2535


09/27/2012 9:51 AM  
Posted By PaulT6 on 09/27/2012 6:24 AM
That is the reason our Committee used the term "vehicles used for business purposes" instead of "Commercial vehicles".

I just love silly rules that are difficult to enforce.

If I use my personal vehicle to deliver product samples, product literature, etc., is not the vehicle being used for business purposes? Yet, from the exterior, my vehicle looks like just any other similar vehicle that is not used for any business purpose other than perhaps getting someone to and from work. There is simply no way to tell by looking at the vehicle that it is being used for business purposes. Only I, my family and a few friends, the IRS (because I claim the business use of my vehicle on my tax return), and possibly my tax preparer (if I use one) know the vehicle is being used for "business purposes." So, the rule is meaningless.

It's the same with you can't do business in your home. Pish tosh! I might be a salesman and store product samples or product literature in my home. Perhaps I telecommute and work from home. Maybe I conduct business over the internet. Maybe I just maintain an office at home but I travel to see clients. (There's that business use of my automobile again.) There is no sign on my door or in my yard. No clients or customers visit me. There is just no way to tell from the outside that I am using my home for business, except that I claim a home office deduction on my income taxes.

My point is, word the rule so that it accomplishes exactly what you want. If the issue is you don't want to allow vehicles that appear to be commercial or used for business, then say so. If the issue is you don't want someone to have a home business that results in excessive vehicle traffic or parking issues, then say so. Don't make rules that are ambiguous, that can be disputed, or can't always be easily and uniformly enforced.
LarryB13
(Arizona)

Posts:4099


09/27/2012 10:17 AM  
Posted By BruceF1 on 09/27/2012 9:51 AM

I just love silly rules that are difficult to enforce.



It would be so simple to just prohibit parking a vehicle that exceeds a specific length, width, height, or weight.
JohnC46
(South Carolina)

Posts:11507


09/27/2012 10:44 AM  
In the one HOA that we were very tough on what was a commercail vehicle we all had two car garages so one could park anything they jolly well wanted to park if it fit in their garage so we could be "hard" as there was an alternative. In the OP's cited case of a company passenger vehicle we would have said it is commercial based on the advertising on it so it cannot be parked overnight in your driveway. Put it in the garage where as an identical vehicle with no signage was not commercial so it could be parked overnight in one's driveway.

In the OP's case it is all outside, lot parking so the rules that work in one case might well not work for his situation.

One thing to look at is does the vehicle require a Commercial Drivers License to operate but even this would still allow some fairly large trucks. To see the size, look at a truck rental site. They will tell you when a specific size or larger requires a CDL. 90% of the rent a trucks you see on the road do not require a CDL.

I would think one way for the OP to do it would be set aside an out of the way, specific area in the parking lot for commercial vehicles and dictate over a specific size is commercial but also limit it to no larger then a specifc size also. I think this can be done by weight.

Hope this helps.








PaulT6
(California)

Posts:409


09/27/2012 1:41 PM  
Posted By LarryB13 on 09/27/2012 10:17 AM
Posted By BruceF1 on 09/27/2012 9:51 AM

I just love silly rules that are difficult to enforce.



It would be so simple to just prohibit parking a vehicle that exceeds a specific length, width, height, or weight.




Larry & all,

I did many on-line searches to see what other communities do, there are many alternatives:

1. GVW, sometimes on the regristration, sometimes on a door sticker, sometimes not

2. Type of vehicle, such a flat bed, cab over van or truck, etc.

3. Physical size, requires measuring the vehicle

4. "Commercial" signage

Items 1 & 3 require "hands-on" inspection and measurement

For ease of identification and enforcement we chose "any vehicle used for business purposes with dual rear wheels or more than one rear axle, with or without signage" Vehicles used for recreational purposes only, such as fifth wheel travel trailer pullers are exempt as are "standard" pickups with single rear wheels, with or without signage. Basically it is anything bigger than a "standard" sized pickup or van.

With few exceptions, trucks or vans equipped for and carrying lumber, plumbing piping, engine and or tailgate lifts, built in external fuel tanks with pumps, built in air compressors, welders, and the list goes on, are used for busioness purposes, signage or not.

I am not saying ours is the best but it is simple, easy to enforce, and easy to understand. As mentioned earlier some of the other "upscale" HOA's in our area do not allow any standard size vehicle with signage or any other vehicle used for business purposes as described above. Sounds like the OP's HOA has taken this approach.

As to business activities in one's home, our Committee's position is basically: "If you can see it, smell it, feel or hear it, it is not allowed".

Paul T
JohnC46
(South Carolina)

Posts:11507


09/27/2012 4:30 PM  
Paul

You say:

As mentioned earlier some of the other "upscale" HOA's in our area do not allow any standard size vehicle with signage or any other vehicle used for business purposes as described above. Sounds like the OP's HOA has taken this approach.

While I advocated this approach in another HOA, we had alternatives such as garage parking. As the OP has only outside lot parking, I think we all agree that this approach will not work.

While I do not have an answer, I hope we can aid the OP in getting his BOD to realize their approach is to simple, unfair, does not fit their situation, etc. and aid him in getting the BOD back to the drawing board.

Hope we are helping.





PaulT6
(California)

Posts:409


09/27/2012 5:45 PM  
Posted By JohnC46 on 09/27/2012 4:30 PM
Paul

You say:

As mentioned earlier some of the other "upscale" HOA's in our area do not allow any standard size vehicle with signage or any other vehicle used for business purposes as described above. Sounds like the OP's HOA has taken this approach.

While I advocated this approach in another HOA, we had alternatives such as garage parking. As the OP has only outside lot parking, I think we all agree that this approach will not work.

While I do not have an answer, I hope we can aid the OP in getting his BOD to realize their approach is to simple, unfair, does not fit their situation, etc. and aid him in getting the BOD back to the drawing board.

Hope we are helping.









John,

The "upscale" HOA's in our area have garages, BIG ones!!. Right, an all out ban with no garages is a tough one. I don't know how to get the PO's Board to change their mind?
Maybe a counter proposal allowing "standard sized" passenger cars with signage. It may just come down to the number of Members that have those?

Paul T
SuzanneL
(Florida)

Posts:32


09/28/2012 3:17 AM  
The Federal Motor Carrier Safety Administration has this definition:
§ 383.5 Subpart A Definitions.
Commercial motor vehicle (CMV) means a motor vehicle or combination of motor vehicles used in commerce to transport passengers or property if the motor vehicle—
(1) Has a gross combination weight rating or gross combination weight of 11,794 kilograms or more (26,001 pounds or more), whichever is greater, inclusive of a towed unit(s) with a gross vehicle weight rating or gross vehicle weight of more than 4,536 kilograms (10,000 pounds), whichever is greater; or
(2) Has a gross vehicle weight rating or gross vehicle weight of 11,794 or more kilograms (26,001 pounds or more), whichever is greater; or
(3) Is designed to transport 16 or more passengers, including the driver; or
(4) Is of any size and is used in the transportation of hazardous materials as defined in this section.

Commerce is also defined.
Commerce means (a) any trade, traffic or transportation within the jurisdiction of the United States between a place in a State and a place outside of such State, including a place outside of the United States and (b) trade, traffic, and transportation in the United States which affects any trade, traffic, and transportation described in paragraph (a) of this definition.

Your state government probably has an equivalent or identical definition.

I probably view this differently from others because I work in the enforcement section of a government agency. Unless the vehicle meets this definition and is engaged in commerce it isn't a commercial vehicle. If an association wants to try ban vehicles with advertising or logos, then call it something else because commercial vehicle is already defined.
LarryB13
(Arizona)

Posts:4099


09/28/2012 4:19 AM  
In all the discussion about the definition of commercial vehicles, everyone has overlooked a very basic question: Does the board have the power to prohibit parking?

The CC&R’s restrict what an owner may or may not be do on or with the property. The courts have held that vague provisions are not enforceable. The Colorado Court of Appeals, for example, held that a restriction against two-story homes was unenforceable as the term “two-story home” was open to multiple interpretations.

In this case, there appears to be no specific restriction in the CC&R’s that would prohibit parking certain types of vehicles. Instead, the board is relying on a provision of the CC&R’s that states, “The Board of Directors of the Townhouse Association may make such reasonable rules and regulations as it may elect with respect to the parking of vehicles..”

This may very well be the definition of vague. Whoever drafted the CC&R’s failed to set forth any restrictions on parking and instead stated (in effect), “I’ll let somebody else figure it someday.”

Even if a court were to uphold this provision, it specifically deals with “parking of vehicles” and not prohibiting parking.

The courts have also held that the CC&R’s are a contract between the owners. In this case, the contract contains a vague clause that allows the board to unilaterally alter the terms of the contract at its whim. That would be a hard sell in court.

At least one court decision held that an association cannot alter its CC&R’s by adopting rules or bylaws. In this case, the association board is adding a restriction to the use of the property that is not stated in the CC&R’s.

The OP made mention of the board having a lawyer. I put very little faith in lawyers who specialize in HOA law. One of the largest local HOA law firms has lost every case that it has ever argued in the appellate courts.
PaulT6
(California)

Posts:409


09/28/2012 6:55 AM  
Our C&R's were written in the early 70's and contained this:

" Garages are to be used for the parking of standard passenger cars and trucks, not to exceed the size of a one-ton pick up truck. It is the intent of this restriction to avoid regular and prolonged parking of cars, trailers, and recreational vehicles in driveways."

In 1995 our Covenants Committee was formed. Our Attorney at the time advised us that changing the C&R's was extremely difficult because of historic quorum problems. He advised us to write a seperate set of sub-rules, based on the C&R's and called the "Covenants Rules", which could be established and revised with the Board's approval:

http://www.tahoedonner.com/wordpress/wp-content/uploads/2011/11/covenantsrules.pdf

Section IV, Private property Rules, page 6, "Commercial Vehicles" contain the information I have been commenting on. Perhaps the OP could explore something similar as it sounds like their C&R's may be somewhat vague on the subject.

Paul T
QuahT
(North Carolina)

Posts:41


09/28/2012 9:30 AM  
Posted By LarryB13 on 09/28/2012 4:19 AM
In all the discussion about the definition of commercial vehicles, everyone has overlooked a very basic question: Does the board have the power to prohibit parking?

The CC&R’s restrict what an owner may or may not be do on or with the property. The courts have held that vague provisions are not enforceable. The Colorado Court of Appeals, for example, held that a restriction against two-story homes was unenforceable as the term “two-story home” was open to multiple interpretations.

In this case, there appears to be no specific restriction in the CC&R’s that would prohibit parking certain types of vehicles. Instead, the board is relying on a provision of the CC&R’s that states, “The Board of Directors of the Townhouse Association may make such reasonable rules and regulations as it may elect with respect to the parking of vehicles..”

This may very well be the definition of vague. Whoever drafted the CC&R’s failed to set forth any restrictions on parking and instead stated (in effect), “I’ll let somebody else figure it someday.”

Even if a court were to uphold this provision, it specifically deals with “parking of vehicles” and not prohibiting parking.

The courts have also held that the CC&R’s are a contract between the owners. In this case, the contract contains a vague clause that allows the board to unilaterally alter the terms of the contract at its whim. That would be a hard sell in court.

At least one court decision held that an association cannot alter its CC&R’s by adopting rules or bylaws. In this case, the association board is adding a restriction to the use of the property that is not stated in the CC&R’s.

The OP made mention of the board having a lawyer. I put very little faith in lawyers who specialize in HOA law. One of the largest local HOA law firms has lost every case that it has ever argued in the appellate courts.




This post pretty much sums up my feelings.

However, it totally goes against what many others have posted on this thread - that we (the HOA/BOD) can do whatever we want. How one can enter into a contract and that contract be legally changed at the whim of the BOD is something I don't understand - yet seems to be acceptable for some reason.

Again, I appreciate all of the comments - I'm reading, thinking and learning.
BrianB
(California)

Posts:2820


09/28/2012 9:40 AM  
How can you enter into a contract that can be changed at the whim of the other party? If the contract clearly states that at the time you sign it.

Most HOA's have rules (in the contract) that state what requirements are required before terms can be changed. X% popular vote, % quorom Board directors w/X notice, certain commentary periods, requirements for this or that to occur.

However, if you signed a contract that said the board could change the rules at any time with just a simple thought, then bad on you for signing such a stupid contract.

My contract states that the board cannot change the CC&R's without a 75% membership vote, for example. So, I don't worry about it. However if the contract says that the board can change the CC&R's with a simple board approval, I would never buy a home in that area.
QuahT
(North Carolina)

Posts:41


09/28/2012 9:43 AM  
Posted By LarryB13 on 09/28/2012 4:19 AM
In this case, there appears to be no specific restriction in the CC&R’s that would prohibit parking certain types of vehicles. Instead, the board is relying on a provision of the CC&R’s that states, “The Board of Directors of the Townhouse Association may make such reasonable rules and regulations as it may elect with respect to the parking of vehicles..”

This may very well be the definition of vague. Whoever drafted the CC&R’s failed to set forth any restrictions on parking and instead stated (in effect), “I’ll let somebody else figure it someday.”

Even if a court were to uphold this provision, it specifically deals with “parking of vehicles” and not prohibiting parking.





Let me totally clarify what is in the C&R, and what is in a "handbook" - because I think this will end up being important if this were to go to court.

Here is what is in the C&R regarding parking:



Section 3. Parking Rights.

(a) Assigned Parking Spaces. Ownership of each Lot shall entitle the Owner(s) thereof to the use of two automobile parking spaces, which shall be assigned initially to said Owner by the Declarant, together with the right of ingress and egress in and upon said parking area. The Board of Directors of Townhouse Association shall have the authority acting in its sole discretion to reassign said parking spaces from time to time as it may determine are in the best interest of the Members.

(b) Visitor Parking. Parking spaces designated for the exclusive use of visitors to the Properties shall not be used by any Owner for the parking of his vehicles, but may be used by persons visiting Owners for period not to exceed one week in time.

(c) Recreational Vehicles. No campers, trucks, vans, or recreational vehicles may be parked or kept within the Properties, except at locations specifically designated for such parking by the Townhouse Association. The Townhouse Association may make reasonable charges for parking of such vehicles in designated areas and may in its sole discretion refuse to allow any such parking within the confines of the Properties. No trailers, boats or tractors may be parked or kept within the Properties, except for maintenance equipment owned by the Townhouse Association.

(d) Rules and Regulations Regarding Parking. The Board of Directors of the Townhouse Association may make such reasonable rules and regulations as it may elect with respect to the parking of vehicles as aforesaid and may amend and vary the requirements of (b) and (c) above without the consent of the Members of the Townhouse Association.


Okay, so the section that talks about the BOD being able to change the rules is (d). (d) says that the BOD may change amend and vary sections (b) and (c). Section (b) is about visitor parking, so doesn't apply. Section (c) is about recreational vehicles, so that doesn't apply in this case either.

In the "handbook", there is this rule regarding parking:


"Spaces are to be used for parking automobiles and passenger trucks only. No commercial
vehicles may be parked in any assigned or visitor spaces."


Now, this is how I see it. The "rule" in the handbook is invalid as it applies to assigned spaces. The C&R only gives the BOD the power to create/alter rules pertaining to visitor parking and recreational vehicles.

It seems pretty clear to me at this point - I didn't even see this before. Am I missing something?
TimB4
(Virginia)

Posts:17766


09/28/2012 9:44 AM  
Posted By QuahT on 09/28/2012 9:30 AM
How one can enter into a contract and that contract be legally changed at the whim of the BOD is something I don't understand - yet seems to be acceptable for some reason.




To answer that question, we need to revisit the key section of your first posting in this thread:

Posted By QuahT on 09/25/2012 8:33 PM
Our HOA currently has this rule:
"Spaces are to be used for parking automobiles and passenger trucks only. No commercial vehicles may be parked in any assigned or visitor spaces."




The problem is that the contract had gray area. In this case the undefined term "commercial vehicle". Since this term wasn't defined, it is left open for interpretation and, as you can see from this thread, there are many interpretations being used.


This same contract gives the Board authority (by allowing it to adopt rules and policies) to clarify any gray areas in the contract.

The fix would be for all parties of the contract (aka the membership) to amend the contract to remove the gray area by amendments. Through amendments, the board will not have the gray area to clarify.

Until the issue is resolved by adopting an amendment, the only other options are challenge the issue in a court of law or for the members to elect a different board who have a different definition of the term. Once elected, they then have the authority to apply their definition (at least until membership votes them out).
QuahT
(North Carolina)

Posts:41


09/28/2012 9:52 AM  
Posted By TimB4 on 09/28/2012 9:44 AM
Posted By QuahT on 09/28/2012 9:30 AM
How one can enter into a contract and that contract be legally changed at the whim of the BOD is something I don't understand - yet seems to be acceptable for some reason.




To answer that question, we need to revisit the key section of your first posting in this thread:

Posted By QuahT on 09/25/2012 8:33 PM
Our HOA currently has this rule:
"Spaces are to be used for parking automobiles and passenger trucks only. No commercial vehicles may be parked in any assigned or visitor spaces."




The problem is that the contract had gray area. In this case the undefined term "commercial vehicle". Since this term wasn't defined, it is left open for interpretation and, as you can see from this thread, there are many interpretations being used.


This same contract gives the Board authority (by allowing it to adopt rules and policies) to clarify any gray areas in the contract.

The fix would be for all parties of the contract (aka the membership) to amend the contract to remove the gray area by amendments. Through amendments, the board will not have the gray area to clarify.

Until the issue is resolved by adopting an amendment, the only other options are challenge the issue in a court of law or for the members to elect a different board who have a different definition of the term. Once elected, they then have the authority to apply their definition (at least until membership votes them out).




Tim, thank you for your reponse - I think we might have posted at the same time.

Can you read my post above, it has all of the information in it - I'm interested if that changes your opinion. Thank you.
TimB4
(Virginia)

Posts:17766


09/28/2012 10:33 AM  
Posted By QuahT on 09/28/2012 9:43 AM
Am I missing something?




Quah, I believe you are.

There is typically language within the governing documents that allow the Board to adopt rules and policies regarding the use of common areas. Since the parking areas are considered common property/area, this would allow the Board to adopt the rule that no commercial vehicles may be parked in the common area.

Additionally, in my opinion, The language you cited has a lot of grey area in it. For example:


Posted By QuahT on 09/28/2012 9:43 AM

(c) Recreational Vehicles. No campers, trucks, vans, or recreational vehicles may be parked or kept within the Properties, except at locations specifically designated for such parking by the Townhouse Association.


The section is titled Recreational Vehicles, so are trucks and vans being defined as a recreational vehicle?
Does this include mini-vans used by most American families?
Wouldn't this also include pick up trucks?


Posted By QuahT on 09/28/2012 9:43 AM

"Spaces are to be used for parking automobiles and passenger trucks only. No commercial vehicles may be parked in any assigned or visitor spaces."




Oops, this rule appears to not have gone far enough.

It doesn't mention vans or mini-vans. Oh, that's right they are being defined as Recreational vehicles in the previous passage. Better tell that soccer mom to park on the mini-van on the street.

Is the pick-up truck is allowed because it carries passengers or disallowed because it can carry cargo?



I hope you can see my point (which I believe is also partially your point). There are gray areas within the contract and common sense has to be used when defining these gray areas. Of course, because the defining authority is ruled by majority vote, common sense may or may not be part of the decision. The decision may just be based on personal opinions.

My personal opinion is I don't care if signage are on a vehicle. In my Association my opinion didn't carry the majority vote.

To answer your question - "I'm interested if that changes your opinion?"

No it didn't (but this has been a great discussion).

As previously posted, the contract likely gives the Board authority to adopt policy for common areas. Therefore, if the policy isn't spelled out in the governing documents or if it contains gray area, the Board becomes the authority unless the membership amends the documents, replaces the board with others who think the way they do or challenge the issue in court.










PaulT6
(California)

Posts:409


09/28/2012 10:45 AM  
Quah,

Looks like your C&R's are fairly specific. Curious as to what the "Handbook" is? It appears that it can be created or changed by the Board as they (someone) did related to Commercial Vehicles. Perhaps a change in the "Handbook" could allow for "Standard" size passenger cars? Your "Contract" or "Handbook" sounds similar to our "Covenants Rules" that I described in an earlier post. Anyway, at least for the present, it is my opinion that the Board is on fairly firm ground, although a detailed description of what is a commercial vehicle would be better. With the exception of violating our Governing Documents or State law our By-Laws basically say the Board can do what they want to:

http://www.tahoedonner.com/wordpress/wp-content/uploads/2011/11/governingdocs.pdf

Page 43, Section(iv)

Note the words "Prudent" & "Reasonable"

Paul T

TimB4
(Virginia)

Posts:17766


09/28/2012 10:52 AM  
Darn lack of edit function.
I obviously messed up editing my quotes on my last post.
It certainly makes it difficult to read.
Sorry about that.
JohnC46
(South Carolina)

Posts:11507


09/28/2012 3:04 PM  
Minor point but quite often a "handbook" is a simple overview/explanation of things and as such, are not the actual rules and in some cases can be contrary to the actual rules.

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