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Subject: Concerning "commercial vehicles"
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Author Messages
PaulT6
(California)

Posts:409


09/28/2012 3:25 PM  
Posted By JohnC46 on 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.





John & all,

"contrary to the actual rules." Interesting that could happen? Anyway, looks like we have pretty well beaten this one to death. Looks like the OP's "handbook" supplements the Rules, item d:

"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."

It also appears the OP is stuck with the Board's decision.

When I worked with our Attorney on Covenants issues I always wanted everything to be "black & white" ,very specific. Interestingly, he was a large proponent of "wiggle room".

Paul T
JohnC46
(South Carolina)

Posts:11507


09/28/2012 3:38 PM  
Paul

From the get go I have always believed the BOD had the right to do what they did.

What I have been trying to do is present arguements, information, real life situations, etc. one could use to get the BOD to change their decision as I believe their ruling does not fit the reality of their situation, which is open parking lots.

Q is on the BOD so he does have their ear.


LarryB13
(Arizona)

Posts:4099


09/28/2012 4:09 PM  
Posted By QuahT on 09/28/2012 9:43 AM

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?




Forget the handbook. It has no legal weight as it is the interpretation and opinion of some unknown party. The CC&R’s are the controlling document.

Without getting into a long-winded dissertation on the subject, the homeowner driving the car with signage is in the right. Paragraph (a) states in part, “Ownership of each Lot shall entitle the Owner(s) thereof to the use of two automobile parking spaces, . . . together with the right of ingress and egress in and upon said parking area.” The homeowner in question has a passenger car (an "automobile") and she has the right to the use of two spaces. The CC&R’s do not give the board the power to alter paragraph (a).

Your CC&R’s prohibit parking trailers, boats, and tractors and they conditionally allow campers, trucks, vans, or recreational vehicles. Nowhere is there a prohibition of "commercial vehicles." Paragraph (d) only gives the board the power to make rules for the parking of "vehicles as aforesaid." The plain language of this paragraph means that board has no power to add other classes of prohibited vehicles.

LarryB13
(Arizona)

Posts:4099


09/28/2012 4:25 PM  
Posted By PaulT6 on 09/28/2012 3:25 PM
When I worked with our Attorney on Covenants issues I always wanted everything to be "black & white" ,very specific. Interestingly, he was a large proponent of "wiggle room".



The legal term for "wiggle room" is "ambiguity." A lack of specifics leaves things open to more than one interpretation. The courts have held that when terms in the CC&R's are open to more than one interpretation they become unenforceable.

See Allen v. Reed at http://caselaw.findlaw.com/co-court-of-appeals/1464443.html.

PaulT6
(California)

Posts:409


09/28/2012 5:16 PM  
Posted By LarryB13 on 09/28/2012 4:25 PM
Posted By PaulT6 on 09/28/2012 3:25 PM
When I worked with our Attorney on Covenants issues I always wanted everything to be "black & white" ,very specific. Interestingly, he was a large proponent of "wiggle room".



The legal term for "wiggle room" is "ambiguity." A lack of specifics leaves things open to more than one interpretation. The courts have held that when terms in the CC&R's are open to more than one interpretation they become unenforceable.

See Allen v. Reed at http://caselaw.findlaw.com/co-court-of-appeals/1464443.html.






Larry,

Totally agree. We most always got what we wanted, but it was very often a struggle.

Paul T
QuahT
(North Carolina)

Posts:41


09/28/2012 7:49 PM  
Posted By LarryB13 on 09/28/2012 4:09 PM



Forget the handbook. It has no legal weight as it is the interpretation and opinion of some unknown party. The CC&R’s are the controlling document.

Without getting into a long-winded dissertation on the subject, the homeowner driving the car with signage is in the right. Paragraph (a) states in part, “Ownership of each Lot shall entitle the Owner(s) thereof to the use of two automobile parking spaces, . . . together with the right of ingress and egress in and upon said parking area.” The homeowner in question has a passenger car (an "automobile") and she has the right to the use of two spaces. The CC&R’s do not give the board the power to alter paragraph (a).

Your CC&R’s prohibit parking trailers, boats, and tractors and they conditionally allow campers, trucks, vans, or recreational vehicles. Nowhere is there a prohibition of "commercial vehicles." Paragraph (d) only gives the board the power to make rules for the parking of "vehicles as aforesaid." The plain language of this paragraph means that board has no power to add other classes of prohibited vehicles.





Thanks for that response, Larry.

Let me make sure I'm following you here.

The paragraph 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 as aforesaid and may amend and vary the requirements of (b) and (c) above without the consent of the Members of the Townhouse Association.". "with respect to the parking of vehicles AS AFORESAID" = "with respect to the parking of vehicles mentioned earlier/mentioned previously".

What exactly does this mean? Types of vehicles mentioned earlier? Or just general parking rules mentioned previously? I think we would all agree that the vehicle in question is a passenger car/automobile. And this says "make such reasonable rules and regulations". What exactly does that mean? Rules and regulations that don't negate the right given in A)? In other words, rules like "you must park inbetween the lines" Or rules like "you can't park there if you have a sign on your car"?

I guess I sort of went in a circle here. Does this direction of argument go along the lines of "ok, the car IS a commercial vehicle - however, you don't have the power to prohibit commercial vehicles"? Couldn't we then say "ok, nevermind, it is an automobile, and whe nprohibit automobiles with signs."? Or, are you saying that because the C&R's specifically allow automobiles, and dont specifically allow the BOD to prohibit them, only "make rules" - that we can not prohibit any type of "automobile"?

Thanks again for you comments - and the same to everyone else. Great discussion!
LarryB13
(Arizona)

Posts:4099


09/28/2012 9:29 PM  
I had a lot of problems with figuring out paragraph (d). I will be the first to admit that I may have it wrong.

I interpreted the phrase “with respect to the parking of vehicles as aforesaid” to mean the vehicles that were described in the paragraphs 3(b) and 3(c). Since the paragraph 3(b) does not describe any vehicles, this may not be the interpretation intended. Perhaps it means vehicular parking described above. The clause “as aforesaid” is where the trouble lies as it is not clear whether it refers to the foresaid vehicles or the foresaid parking.

Paragraph 3(b) is labeled “Visitor Parking” and 3(c) is “Recreational Vehicles.” I would have a hard time concluding that the board’s power to unilaterally amend provisions of the CC&R’s for Visitor Parking and RV’s was intended to allow them to add restrictions for vehicles that are neither owned by visitors nor are RV’s.

The phrase “may amend and vary the requirements of (b) and (c) above without the consent of the Members of the Townhouse Association” is very troubling. The CC&R’s are a notice to buyers of what they may not do with respect to their property. Most CC&R’s have some provision for amending the document and it almost always requires the consent of more than just the board. If your CC&R’s have a provision for amendments that requires the consent of a certain percentage of owners, is there an exemption for Section 3(d) or is there a conflict between this section and the rest of the CC&R’s?

If the board “amends” the paragraphs 3(b) and 3(c), should that amendment to the CC&R’s be recorded? If not, then how does a person know that paragraphs 3(b) and 3(c) have been amended? Does an amendment apply to those who purchased their property prior to the amendment?

Paragraph 3(c) is full of ambiguities, as well. First it says no RV’s can be kept on the property, then it says RV's can be kept in a designated area, and finally it says the board can banish them from the site. Well, which is it? Pity the poor lawyer who has to defend that paragraph in court. The only vehicles clearly prohibited in paragraph 3(c) are trailers, boats, and tractors.

Some state courts have adopted the rule that CC&R’s can not be made more restrictive or impose new obligations upon the owners, but this is not universal. Arizona has adopted that rule; neighboring Colorado has rejected it.

I think Paragraph 4(d) was very poorly worded. The phrase “may amend and vary the requirements of (b) and (c) above without the consent of the Members of the Townhouse Association” might have been better stated as “may implement rules consistent with the provisions of (b) and (c).”

My opinion is that the board went way out on a limb to implement a retroactive unilateral amendment to the CC&R’s. I think the board would be foolish to continue with their assault on this owner. If she was to pursue this matter in the courts, a judge could make a shambles out of your CC&R's if the whole document is as poorly written as these few paragraphs.
TimB4
(Virginia)

Posts:17766


09/29/2012 5:33 AM  
Posted By QuahT on 09/28/2012 7:49 PM

The paragraph 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 as aforesaid and may amend and vary the requirements of (b) and (c) above without the consent of the Members of the Townhouse Association.". "with respect to the parking of vehicles AS AFORESAID" = "with respect to the parking of vehicles mentioned earlier/mentioned previously".




Quah,

As was recently pointed out to me on another thread by Jay, you need to be sure to read the entire document.

You appear to fixed on this one section. However, as I previously posted, there are typically generalized statements within the governing documents that authorize the Board to adopt rules affecting the common area.

For example:

Within our bylaws:

Section 1.Powers. The Board of Directors shall have all of the powers necessary for the administration of the affairs of the Association including the following:

(a) adopt and publish rules and regulations governing the use of the Common Area and facilities, and the personal conduct of the members and their guests thereon, and to establish penalties for the infraction thereof;


I suspect that your governing documents have similar language somewhere within your documents. If it does, that paragraph would authorize the board to specify what vehicles may be parked on the common area parking lot.



If you haven't done so, you should read all of your governing documents (CC&Rs, Articles of Incorporation, Bylaws and the various resolutions of the board.


QuahT
(North Carolina)

Posts:41


09/29/2012 5:54 AM  
Posted By TimB4 on 09/29/2012 5:33 AM

As was recently pointed out to me on another thread by Jay, you need to be sure to read the entire document.

You appear to fixed on this one section. However, as I previously posted, there are typically generalized statements within the governing documents that authorize the Board to adopt rules affecting the common area.






Thanks Tim. I'll will have a more complete look.

However, I question the premise that the parking spaces are common area. Are they? Each property is allocated two spaces assigned to that property.
QuahT
(North Carolina)

Posts:41


09/29/2012 6:17 AM  
Just wanted to mention that I hate that I look like I nitpick every single thing. It really isn't intentional, I'm just the type of person that wants to find logic in things.

Maybe I will never find such logic in HOA type things. Lol.

Is there already a thread where we can are about the definition of "common area"?
JohnC46
(South Carolina)

Posts:11507


09/29/2012 6:53 AM  
Quah

Early on you said the BOD could assign the parking spaces as they desired to assign them. This says to me the parking spaces are not deeded as they would be fixed spaces, thus this says to me that the parking lots are common ground.

Personally I think you could make a better case that signs alone do make it a commercial vehicle rather then question the authority of the BOD or try and find loopholes in the docs.

The BOD does not even have to make a rule. Leave it alone. When a complaint is registered they could just reply that they do not consider a passenger vehicle to be a commercial vehicle.

I believe the BOD had the right to do as they did. Now was it the best of decisions is another issue. Maybe they are looking for a way to save face versus someone in their face trying to rule trump them.

Ask about an SUV that has an advertisement on its back window. These are very common around here with real estate agents. Might even be one or two in your association.






TimB4
(Virginia)

Posts:17766


09/29/2012 7:02 AM  
Posted By QuahT on 09/29/2012 5:54 AM

However, I question the premise that the parking spaces are common area. Are they? Each property is allocated two spaces assigned to that property.




Being assigned two spaces for exclusive use is not the same as having the spaces deeded to you.

Were the spaces identified within your deed and do you directly pay for all repairs and maintenance of your two parking spaces or is Association funds being used for that?


Per your earlier posting [emphasis added]:

(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.
I live in a town home community as well and, at least for us, the roads/parking areas are indeed common property and maintained with Association funds.


If the parking spaces weren't common property, the Board would not have the authority to reassign parking space as you would physically own that space.

PaulT6
(California)

Posts:409


09/29/2012 7:26 AM  
The Board could have exempted "standard" sized passenger vehicles with signage on them, but they didn't. It appears the "Handbook" is an indication of where their thinking is? I don't remember how close the vote was? Some possibilities:

1. Ask the Board to re-consider their original decision.

2. Request your C&R's be revised to be more specific

3. The Member could take legal action against the Assn for being "unreasonable"

Paul T
QuahT
(North Carolina)

Posts:41


09/29/2012 11:34 AM  
I took a look at the C&R's - and here are the only things about Common Area -

ARTICLE IV
PROPERTY RIGHTS

Section 1. Owner’s Easements of Enjoyment. Every Owner shall have a right and easement of enjoyment in and to the Townhouse
Common Area which shall be appurtenant to and pass with the title to every Lot, subject to the following provisions:

.....................

(d) The rights of Owners to the exclusive use of parking spaces as provided in Section 3 of this Article IV;



Section 3 is the section I previously posted.

Also, there is this:

ARTICLE X
USE RESTRICTIONS

.........................

Section 5. Use of Townhouse Common Area. The Townhouse Common Area shall not be used in any manner except as shall be approved or specifically permitted by the Townhouse Association.

.........................

Section 10. Regulations. Reasonable regulations governing the use of the Townhouse Common Area and external appearance of the Townhouse units may be made and amended from time-to-time by the Board of Directors of the Townhouse Association; provided, however, that all such regulations and amendments thereto shall be approved by a majority vote of the Owners before the same shall become effective. Copies of such regulations and amendments thereto shall be furnished to each Member by the Townhouse Association upon request.


Ok, now - reading both of these articles, it appears to me that the BOD does not have the right to prohibit vehicles with advertising unless a majority of the owners approve.

Are we getting somewhere now? Or is there another hole I've overlooked?
PaulT6
(California)

Posts:409


09/29/2012 1:06 PM  
Quah,

You may be right, but they did it anyway. It is not impossible to put the toothpaste back into the tube, but quite difficult. It appears that unless the Board re-considers their original position the only possibilities are a re-call or legal action against them (you)

Paul T
JohnC46
(South Carolina)

Posts:11507


09/29/2012 1:13 PM  
Quah

Tough love here but it is time for you to stop playing lawyer and looking for loopholes.

Either get the BOD to change it mind, recall them and replace them, or sue them.


QuahT
(North Carolina)

Posts:41


09/29/2012 1:17 PM  
Posted By JohnC46 on 09/29/2012 1:13 PM
Quah

Tough love here but it is time for you to stop playing lawyer and looking for loopholes.

Either get the BOD to change it mind, recall them and replace them, or sue them.






Oh, I'm with ya. I'm just looking to be able to make a decent argument with them, that's all.
JohnC46
(South Carolina)

Posts:11507


09/29/2012 2:04 PM  
Quah

I believe most out here feel they have the power to do what they did. I believe you will be making a mistake if take the approach that they cannot do what they did. If you have, then you may have already alienated some of them.

I believe most out here feel their rules are not very clearly defined and need to be better defined.

I believe you should be trying to get them to come together and agree the rules need to be btter defined.

Get them to agree that rules/definitions, etc. have to be reviewed. If you can get them to agree to review, then suggest the first thing they do is notify the owner with the passenger vehicle that they are reviewing parking issues and in the meantime she may park the vehicle in her designated spot. If anyone complains the BOD can say they are reviewing the rules and in the meantime that vehicle can stay.

I think you have explored the avenue of showing them they are wrong far enough.

Hope this helps.


TimB4
(Virginia)

Posts:17766


09/30/2012 7:54 AM  
Posted By QuahT on 09/29/2012 11:34 AM

I took a look at the C&R's - and here are the only things about Common Area -

Are we getting somewhere now? Or is there another hole I've overlooked?




You haven't read all of your governing documents.

Do the Bylaws give this authorization (which is where my example came from)?
What about the Articles of Incorporation?

You need to look at all of your governing documents not just the CC&Rs
MikeS1


Posts:521


10/01/2012 5:13 AM  
Much of the time, you'll find another alternative to your problem. If the board passes a resolution that the membership does not like, (as per the Docs), they can get a petition that contains 10% of the owner signatures which demands that the new commercial Vehicle rule (resolution) be voted on by the membership. A special meeting is called and if the membership shoots it down by a majority of the votes, then the new rule is dead.
QuahT
(North Carolina)

Posts:41


10/31/2012 12:29 PM  
Well, here is an update and a question.

The homeowner met with the board a couple of times trying to convince us that she didn't have a commercial vehicle. The board stood its ground and continued to rule that she did.

She then mentioned that our new definition of commercial vehicle should be voted upon at our upcoming annual membership meeeting, and asked that we also vote on an alternate definition that would make her vehicle legal.

The board never responded to her request to add either vote to the agenda, and I'm not sure if we will or will not, honestly.

However, the board has taken an odd stand, IMO, they have stated that since she is currently in violation, her voting privileges are suspended, and she can't participate in the annual meeting. This seems a bit underhanded to me, and I'm not sure if that is legal. It certainly isn't reasonable.

What do you guys think? Should the homeowner, currently in violation of a rule, not be allowed to vote and participate in an effort to change that rule?
GlenL
(Ohio)

Posts:5491


10/31/2012 4:39 PM  
Posted By QuahT on 10/31/2012 12:29 PM
What do you guys think? Should the homeowner, currently in violation of a rule, not be allowed to vote and participate in an effort to change that rule?



It depends on whether it is allowed under either your CC&R's or NC law. For instance OH statutes allow us to suspend voting privileges on past due assessments not for being in violation.

Studies show that 5 out of 4 people have problems with fractions
JohnC46
(South Carolina)

Posts:11507


10/31/2012 5:11 PM  
QA

Check your docs for a member in good standing. She might well not be one. at this time.

BradP
(Kansas)

Posts:2640


11/01/2012 6:16 AM  
You need to check both your documents and state law. For example in Kansas our documents permit us to suspend voting privileges but state law passed two years ago does not. I would be very, very, very sure you are correct on this or it will come back to bite you.
BradP
(Kansas)

Posts:2640


11/01/2012 6:31 AM  
I am a little late to this party but would say this to the original poster, the BOD better get its act together and provide a much better definition of what is a commericial vehicle. My car would qualify as a commercial vehicle because it has an emblem from the dealership I bought it at and my license plate holder is a an advertisement of the dealership as well. my little passenger car is far from a commercial vehicle but fits your definition. I have two problems with what your board has done:

1) this lady has parked her vehicle for 14 months with no issues and a very vague definition of a commercial vehicle which her car did not fit. Now the board has decided to define it with a rather stupid definition that she and probably 90 percent of the vehicles in your community would be excluded and you are expecting her at a whim to suffer a hardship. She already explained the hardship she would face having to drive the extra mileage, etc. I don't like the coming in well over a year after the fact and changing the rules of the game without a membership vote.

2) you are totally going against the state of North Carolina's definition of a commercial vehicle.

I don't know, as things stand right now I think this lady would have a great shot at winning a lawsuit against your community based primarily on two things 1) your definition is unreasonable and why are you singling her out? 2) you waited over a year to challenge this and decided to change the rules.
QuahT
(North Carolina)

Posts:41


12/22/2012 4:20 AM  
And so it continues.....

Somewhere in this process the BOD sent her a certified letter telling her she was in violation, and that the had three options:

1. Put a cover on the car when it is parked.
2. Don't park the car here.
3. Pay a $100 per month fine.

At this point, while determining what her other options are, she has decided to pay the fine and has included the extra $100 with her HOA dues for the past couple of months. I've talked to her, and she says that it is cheaper for her to pay the $100/month fine than it is to buy herself a car, pay insurance, etc. I understand that.

But now the BOD is mad that she has chosen to do that, and have sent her another letter saying that she is still in violation and that the car will be towed if still in violation at some certain date.

Of course, she is even more upset now, because the letter we sent her gave her three options - and she has followed it and chosen one. The letter says "$100 per month fine" - which she says makes it clear that she can do that each month. Again, I agree with her.

But, again we are back to the "the BOD can do whatever it wants to do" thing. But there has to be some limit. No one can hit a constantly moving target.
MelissaP1
(Alabama)

Posts:10521


12/22/2012 5:43 AM  
I certainly like this woman's style...Sounds like giving someone the finger without actually giving them the "finger". The BOD came up with it's own solution that just frankly isn't going to work. Didn't think this through with putting a "cap" on the total over time. The fine should have said something like "100 dollars a month Or until $500 max is reached. Then additional measures will be taken". That could resolve that part of it in a timelier manner.

Considering that many states do NOT allow fines to be used as the basis of liens/foreclosures. This all presents a huge burden on the HOA of proving they can indeed even place a fine for this. Seems there should be another options such as towing and the owner pays the expense of the tow. That then CAN be liened for if not paid. It's NOT a fine then. It's damages.

It's a sticky thing about commercial vehicles. I never had to deal with it because we didn't have such a rule. I am sure others here have that experience and have had success enforcing it.

Former HOA President
QuahT
(North Carolina)

Posts:41


12/22/2012 5:58 AM  
Thanks for the reply, Melissa.

I think the real rub here is that it appears that no matter what happens, what is said, or what is written - the board can do whatever it wants because it can just change the rules as it sees fit.

This was part of my concern all along, and of couse the homeowner has been saying the same thing. The homeowner looked over the options given to her, and decided the cheapest option for he was to pay the $100 "fine". She figured it was settled at that point, until at some point she chose to fight it further.

I legally understand how the board can now simply change its mind and not offer the fine option - but personally I think it is totally crazy - who is to say that whatever solution we come up with next will have any staying power?
GlenL
(Ohio)

Posts:5491


12/23/2012 6:30 PM  
Pay a $100.00 a month "fine" or by a car cover for around a $100.00, seems like she chose the cut off your nose to spite your face option. If this is the route she wants to go, then she should pay an attorney to fire off a letter to the HOA stating if they violate the options she was given, then she will have no other recourse but to see them in court.

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

Posts:41


12/25/2012 11:52 AM  
Posted By GlenL on 12/23/2012 6:30 PM
Pay a $100.00 a month "fine" or by a car cover for around a $100.00, seems like she chose the cut off your nose to spite your face option. If this is the route she wants to go, then she should pay an attorney to fire off a letter to the HOA stating if they violate the options she was given, then she will have no other recourse but to see them in court.




Well, she explains that covering the car is not an option. She says she is concerned about ruining the wrap, which I understand. The cover will trap heat, humidity, wetness, etc. Putting a cover on a dirty car is generally not advised, since the cover + dirt will scratch up the lamination of the wrap. She has said this since day one.

I'm not so sure she could take us to court on this anyway. It is my understanding that we (the BOD) can make/change rules as we please. We can decide to no longer offer the fine option, as I understand it. Then again, that has been one of my issues this entire thread - how does a homeowner abide by rules that can change on the whim of a few people without any consideration for "grandfathering"?

She knows I'm on her side, but I find it hard to look her in the eye - it's just not right.
GlenL
(Ohio)

Posts:5491


12/25/2012 2:21 PM  
She has the option of rallying enough of her neighbors to change the Covenants to allow her vehicle.

Studies show that 5 out of 4 people have problems with fractions
JohnC46
(South Carolina)

Posts:11507


12/26/2012 6:47 AM  
Q

Please describe the vehicle signage. I get the impression it is all decked out versus a simple door sign.

Sometimes ugly is as ugly is.

JohnC46
(South Carolina)

Posts:11507


12/26/2012 7:23 AM  
At a recent meeting (we are in a year long process of transitioning from Declarant to owner control), one person brought up commercial vehicles and maybe we should look at some restrictions.

Each home has a double wide, cement driveway/parking pad in front if it, but some of our models do not have a garage. Some of the driveways are also two cars deep so one could squeeze 4 cars in. We do have a few 3 space parking areas for overflow parking.

I replied that without garages and off site parking that we had better tread carefully. When questioned (and thanks to this forum) I replied well let us take some simple examples first.

1. An SUV that has the name, address, and phone number of a business on the rear window like many real estate agents do. Does the signage makes it a commercial vehicle?

2. Two identical Ford F-150 trucks. One festooned with ladders, pipe racks, etc. Is one commercial and one is not?

3. SC allows for commercial plates on passenger vehicles to be able to park in loading/unloading zones. Do these plates make it a commercial vehicle?

One vehicle was mentioned. It is a pickup truck that has a rig on the front and back ends to be able to ride rail road tracks but there is no signage on it nor other equipment. I countered that we have at least one SUV with the lettering on the rear window. I said one could argue the SUV is a commercial vehicle as much as the rail riding pickup is.

At least I got them to agree that it was not as simple an issue as some might think it is.

When asked what would I do, I said unless someone makes it an issue I suggest we do not address it at this time. At present, that seems to be the leaning.




QuahT
(North Carolina)

Posts:41


12/26/2012 7:46 AM  
Posted By JohnC46 on 12/26/2012 6:47 AM
Q

Please describe the vehicle signage. I get the impression it is all decked out versus a simple door sign.

Sometimes ugly is as ugly is.





Well, yes - it is a complete wrap - not a "sign". She works for a local printer supply/cartridge refill place.

Is it ugly? I don't think anyone would describe it as ugly. It's on a brand new Smart car. It is "eye catching", not offensive.

She made the point that there are much worse looking cars in the complex - rust spots, faded paint, etc.

But yet again, these are all moot points - because the bottom line is we (the BOD) can do as it pleases with regard to setting rules. We can even have a rule that says "no car wraps with pictures of ink cartridges" if we wanted to. As someone said above, and she has said the same, her only choice is to rather enough signatures to amend the CCR's.
PaulT6
(California)

Posts:409


12/26/2012 7:58 AM  
Posted By JohnC46 on 12/26/2012 7:23 AM
At a recent meeting (we are in a year long process of transitioning from Declarant to owner control), one person brought up commercial vehicles and maybe we should look at some restrictions.

Each home has a double wide, cement driveway/parking pad in front if it, but some of our models do not have a garage. Some of the driveways are also two cars deep so one could squeeze 4 cars in. We do have a few 3 space parking areas for overflow parking.

I replied that without garages and off site parking that we had better tread carefully. When questioned (and thanks to this forum) I replied well let us take some simple examples first.

1. An SUV that has the name, address, and phone number of a business on the rear window like many real estate agents do. Does the signage makes it a commercial vehicle?

2. Two identical Ford F-150 trucks. One festooned with ladders, pipe racks, etc. Is one commercial and one is not?

3. SC allows for commercial plates on passenger vehicles to be able to park in loading/unloading zones. Do these plates make it a commercial vehicle?

One vehicle was mentioned. It is a pickup truck that has a rig on the front and back ends to be able to ride rail road tracks but there is no signage on it nor other equipment. I countered that we have at least one SUV with the lettering on the rear window. I said one could argue the SUV is a commercial vehicle as much as the rail riding pickup is.

At least I got them to agree that it was not as simple an issue as some might think it is.

When asked what would I do, I said unless someone makes it an issue I suggest we do not address it at this time. At present, that seems to be the leaning.









John,

We have a basic size limit but the description is if the vehicle is used for any purpose to generate revenue, directly or indirectly, like your rail car truck. It works pretty well for us.

Paul T
QuahT
(North Carolina)

Posts:41


12/26/2012 8:15 AM  
Posted By PaulT6 on 12/26/2012 7:58 AM
Posted By JohnC46 on 12/26/2012 7:23 AM
At a recent meeting (we are in a year long process of transitioning from Declarant to owner control), one person brought up commercial vehicles and maybe we should look at some restrictions.

Each home has a double wide, cement driveway/parking pad in front if it, but some of our models do not have a garage. Some of the driveways are also two cars deep so one could squeeze 4 cars in. We do have a few 3 space parking areas for overflow parking.

I replied that without garages and off site parking that we had better tread carefully. When questioned (and thanks to this forum) I replied well let us take some simple examples first.

1. An SUV that has the name, address, and phone number of a business on the rear window like many real estate agents do. Does the signage makes it a commercial vehicle?

2. Two identical Ford F-150 trucks. One festooned with ladders, pipe racks, etc. Is one commercial and one is not?

3. SC allows for commercial plates on passenger vehicles to be able to park in loading/unloading zones. Do these plates make it a commercial vehicle?

One vehicle was mentioned. It is a pickup truck that has a rig on the front and back ends to be able to ride rail road tracks but there is no signage on it nor other equipment. I countered that we have at least one SUV with the lettering on the rear window. I said one could argue the SUV is a commercial vehicle as much as the rail riding pickup is.

At least I got them to agree that it was not as simple an issue as some might think it is.

When asked what would I do, I said unless someone makes it an issue I suggest we do not address it at this time. At present, that seems to be the leaning.









John,

We have a basic size limit but the description is if the vehicle is used for any purpose to generate revenue, directly or indirectly, like your rail car truck. It works pretty well for us.

Paul T




Paul, I don't remember if this came up earlier in the thread or not - how does your rule, for example, apply to someone that uses their to deliver pizza? Seems to me that your rule would prohibit that vehicle from being parked, because it is used to generate revenue. Same for the Avon lady.
GlenL
(Ohio)

Posts:5491


12/26/2012 9:08 AM  
Quah, you keep talking about a "rule", is it a rule or is she in violation of a Covenant? And if it is a rule rather than a Covenant is there a Covenant or state law that lets the BOD make a rule about parking?

Studies show that 5 out of 4 people have problems with fractions
GlenL
(Ohio)

Posts:5491


12/26/2012 9:12 AM  
JohnC46 while I commend your voice of reason about commercial vehicles, what about large box vans or semi's? Are there any local ordinances that would prohibit them?

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

Posts:41


12/26/2012 9:33 AM  
Posted By GlenL on 12/26/2012 9:08 AM
Quah, you keep talking about a "rule", is it a rule or is she in violation of a Covenant? And if it is a rule rather than a Covenant is there a Covenant or state law that lets the BOD make a rule about parking?





Well, there is a covenant that says "no commercial vehicles may be parked in owners or visitors spaces". And it is also in the covenants that the BOD may make rules pertaining to parking.

I started this thread asking the question "what defines a commercial vehicle" - because in our state, commercial vehicles are defined by size - not by the fact that they have a sign on them. So that was her initial point, that her vehicle was not a commercial vehicle. But then she realized that was really a moot argument, because we could change that rule at any time anyway - so she could be right that under the current rule she doesn't have a commercial vehicle - so we changed the rule to include cars with advertising on them.

Again, the bottom line is we are all chasing our tail because the rules can change as each "side" figures a loophole - however, she will always be on the losing side because we can do whatever we want.

Unless to CCR's get changed. That seems to be her only option.

The whole thing is silly - she has been parking this car in her space for more than 18 months now, and just in the past couple of month has it become an issue for anyone - and that amounts to a grand total of 2 people who "don't like it". Less than 2% of the membership.
GlenL
(Ohio)

Posts:5491


12/26/2012 11:59 AM  
So if you speed down the road doing 20mph over the limit and don't get caught for 18mo then get caught should you get a free pass because you got away with it for 18mos? Like it or not what you have described is a commercial vehicle, I think the board has been reasonable but she doesn't like the option of covering the car. I doubt that something that is designed to be out in the weather rain or shine would be adversely affected by a quality car cover. They are designed to cover a car without destroying the paint job after all.

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

Posts:41


12/26/2012 12:15 PM  
Posted By GlenL on 12/26/2012 11:59 AM
So if you speed down the road doing 20mph over the limit and don't get caught for 18mo then get caught should you get a free pass because you got away with it for 18mos? Like it or not what you have described is a commercial vehicle, I think the board has been reasonable but she doesn't like the option of covering the car. I doubt that something that is designed to be out in the weather rain or shine would be adversely affected by a quality car cover. They are designed to cover a car without destroying the paint job after all.




When she brought that up about the cover, I did some reading - and she is right - every car cover company tells you the car should be clean before putting the cover on the car.

GlenL
(Ohio)

Posts:5491


12/26/2012 12:40 PM  
Posted By QuahT on 09/25/2012 9:26 PM
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.



Because it is your place and that of your fellow Board Members to enforce the covenants or try to change them, not to ignore them. That is the start of a slippery slope towards selective enforcement. Suppose someone moves in that owns a package delivery van with similar markings, do you allow it? Ban it? Or require that it be covered while parked on the property? If only 2% of the people have a problem with it, then you should have no problem getting the required percentage to vote to remove that particular covenant.

Studies show that 5 out of 4 people have problems with fractions
PaulT6
(California)

Posts:409


12/26/2012 1:23 PM  
Posted By QuahT on 12/26/2012 8:15 AM
Posted By PaulT6 on 12/26/2012 7:58 AM
Posted By JohnC46 on 12/26/2012 7:23 AM
At a recent meeting (we are in a year long process of transitioning from Declarant to owner control), one person brought up commercial vehicles and maybe we should look at some restrictions.

Each home has a double wide, cement driveway/parking pad in front if it, but some of our models do not have a garage. Some of the driveways are also two cars deep so one could squeeze 4 cars in. We do have a few 3 space parking areas for overflow parking.

I replied that without garages and off site parking that we had better tread carefully. When questioned (and thanks to this forum) I replied well let us take some simple examples first.

1. An SUV that has the name, address, and phone number of a business on the rear window like many real estate agents do. Does the signage makes it a commercial vehicle?

2. Two identical Ford F-150 trucks. One festooned with ladders, pipe racks, etc. Is one commercial and one is not?

3. SC allows for commercial plates on passenger vehicles to be able to park in loading/unloading zones. Do these plates make it a commercial vehicle?

One vehicle was mentioned. It is a pickup truck that has a rig on the front and back ends to be able to ride rail road tracks but there is no signage on it nor other equipment. I countered that we have at least one SUV with the lettering on the rear window. I said one could argue the SUV is a commercial vehicle as much as the rail riding pickup is.

At least I got them to agree that it was not as simple an issue as some might think it is.

When asked what would I do, I said unless someone makes it an issue I suggest we do not address it at this time. At present, that seems to be the leaning.









John,

We have a basic size limit but the description is if the vehicle is used for any purpose to generate revenue, directly or indirectly, like your rail car truck. It works pretty well for us.

Paul T




Paul, I don't remember if this came up earlier in the thread or not - how does your rule, for example, apply to someone that uses their to deliver pizza? Seems to me that your rule would prohibit that vehicle from being parked, because it is used to generate revenue. Same for the Avon lady.




Size is the overall factor. Our original C&R's stated nothing larger vthan a one-ton pickup truck. Here is what our current Covenants Rules say:

"Commercial Vehicles. No commercial vehicle used for business purposes that is equipped with more than one (1) rear axle and/or two (2) rear wheels shall be parked on any property unless the vehicle is parked within a fully enclosed garage or carport, or is screened from view using an ASC approved method.

For the purpose of this section, a commercial vehicle used for business purposes is described as:

A full sized pickup truck or larger truck or van, or box van type vehicle equipped with dual rear wheels and any of the following: a flat bed, a utility bed, or permanently affixed commercial advertising.

Specifically exempt from this regulation are:

Pickup trucks and vans used for business purposes and designated by the manufacturer as full size, mid-size or compact, that do not have dual rear wheels, regardless of other body configuration or permanently affixed advertising.

A commercially licensed pickup truck of any size, equipped with a standard pickup bed, and is used as a private vehicle, not for business purposes. A private use pickup truck may have dual wheels as required for recreational uses."




Trucks of any size or configuration that are parked on a property for use related to an open Architectural Standards Office issued construction permit and/or Town of Truckee building permit.

Service company vehicles present for emergency home or vehicle repairs."

Overall, it works pretty well. Unusual situations are considered on an individual case basis. We have very few of these in a 6,400 property Assn.

Paul T
QuahT
(North Carolina)

Posts:41


12/26/2012 1:38 PM  
Thanks Paul - I think your "rules" make perfect sense.

A fully wrapped Smart Car, in your case, would not be considered a commercial vehicle under your rules.
JohnC46
(South Carolina)

Posts:11507


12/26/2012 2:08 PM  
Posted By GlenL on 12/26/2012 9:12 AM
JohnC46 while I commend your voice of reason about commercial vehicles, what about large box vans or semi's? Are there any local ordinances that would prohibit them?




Glen

Without listing our whole Vehicle Clause, we do reference commercial vehicles being prohibited but no clarification as to what constitutes a commercial vehicle and we have no size restrictions but the clause does say:

....no towed vehicle, boat, boat trailer, recreational vehicle, motor home, mobile home, bus, truck with camper top, truck (except pick-up trucks and sport utility vehicles), commercial vehicle, motorcycle, scooter, go cart or similar recreational vehicle...

....for more then 48 consecutive hours......and temporary removal shall not be sufficient to establish compliance....

At least I think we are being reasonable with the 48 hour limit so every time/thing will not be an immediate issue. Like my car in the shop but the compnay ssayus OK, take our truck home for the night, working late and long drive, etc.

Definitions can be very, very subjective.

Busy bodies like immediate issue...call at 7am...there was a "truck" parked overnight....









JohnC46
(South Carolina)

Posts:11507


12/26/2012 2:12 PM  
Q

A full car wrap is a bit different then an easily covered sign.

I think she is coping out on not using a car cover. There are plenty of felt lined ones that do no paint damage and do breath (do not capture moisture) car covers.

Just cover it up Honey. Q will sleep better.....LOL


JohnC46
(South Carolina)

Posts:11507


12/26/2012 2:15 PM  
Q

Sorry no edit....

To me, a fully wrap car sign makes it a commercial vehicle no matter how you slice and dice it.
PaulT6
(California)

Posts:409


12/26/2012 3:30 PM  
Posted By QuahT on 12/26/2012 1:38 PM
Thanks Paul - I think your "rules" make perfect sense.

A fully wrapped Smart Car, in your case, would not be considered a commercial vehicle under your rules.




Yes, it works fairly well. However, once in a while we get the full size van completely covered in bright red and white signage or equivalent. Our Assn is in a forested mountain community of single family residential homes with some 4 unit condos mixed in.
We have a commercial sign restriction of brown and white only. Our outside home finishes are restricted to subdued "earth tone" colors.

Wen we get the full wrap van parked outside we receive a lot of complaints about them not being compatible with our "mountain theme". But do to some of our bleeding heart Directors we have to live with it. Better than nothing.

Paul T
MelissaP1
(Alabama)

Posts:10521


12/26/2012 6:42 PM  
I wouldn't consider an advertising car wrap a "Commercial vehicle" by the definition of the OP's posted rules. The rules are in reference to things that the state licensing board would consider "commercial". Adding commercial advertising wrap doesn't change the definition for the state's license or local laws. You don't go and pay extra money on your car tags if you wrap your car up in advertising. The state licensing regulations would be my "legal" lythmus test in addition to my HOA rules.

This is interesting as the car most likely violates more the "No signage" rule that most HOA's have than the commercial vehicle. It's like putting out those annoying signs of "Roofing done by so and so". There are no signage rules for just having a "For Sale/Rent" in most HOA's.

Now that I know this is a wrapped advertised car, then my opinion has changed a bit. The CC&R's defintions do need to be updated to add this new type of advertising/commerical use vehicle into the rule book. Otherwise, I have to say the HOA has no right to place any kind of punishment in this situation.

Former HOA President
JohnC46
(South Carolina)

Posts:11507


12/27/2012 6:13 AM  
Melissa

I disagree on letting the state define it.

Many states define a commercial vehicle by weight. As an example the typical move yourself, big box rental truck that Hertz and others rent, do not require a commercial drivers license thus they are not commercial vehicles.

The truck you can rent from Lowes or Home Depot for a few hours is not by state law definition, a commercial vehicle.

In my mind, the above vehicles most certainly are commercial but I also think a full wrap car advertisement is also a commercial vehicle.



MelissaP1
(Alabama)

Posts:10521


12/27/2012 7:19 AM  
John I am not exactly disagreeing with you. The issue here is in the definition or the pudding. Car advertising wrap has not been definitely defined in the wording as being commercial. That is where the issue truly is. 20 some years ago this type of advertising did NOT exist when most HOA documents were created. Meaning that it lacks a definition for this type of commercializing.

The solution would be to update the HOA's documentation and provide more clear definition of what is a commercial vehicle. So far the best way to do this would to be keeping with the state laws definitions which the court would most likely use as their definition. You have to think one step ahead and what the court would have to use to define this as as well. They can't use the HOA's documents as they lack a clear definition. That is why I would go with the state's definition of commercial vehicle as a lythmus test if this were to go to court.

It's not that I don't believe this could be a "commercial vehicle". It's just the lack of clear definition of it being one that is the loophole here...

Former HOA President
QuahT
(North Carolina)

Posts:41


12/27/2012 8:10 AM  
Melissa - I think you hit the nail on the head. Back when these rules were created, there was no such thing as a wrapped car. So for anyone to say that wrapped cars were intended to fall under this rule is not reasonable.

The bottom line really is this. These is no need to debate if a wrapped car is a commercial vehicle or not. If the association wants to ban wrapped vehicles, then they should just simply have a rule banning wrapped vehicles. Then there would be no question about it.

I apologize for making what appears to be a bigger deal than needed over this. As I've said in earlier posts, my ultimate problem with this is the fact that the rules, to homeowners, are always a moving target. Someone could ask the current BOD if it is ok to park a wrapped car, they might say yes - and then this person go out and spend $4,000 on a wrap. Then a couple of years later, a different BOD can make a rule banning wrapped cars, and this person who had previously asked will be in violation. This makes no sense to me.
JohnC46
(South Carolina)

Posts:11507


12/27/2012 8:49 AM  
Mel and Q

Allow me to draw the following comparision and ask a question:

Two identical Chrysler mini-vans.

Vehicle A has lettering on both front doors and back:

AAA Airport Shuttle
24 Hour Service
1-222-555-1212
www.AAAshuttle.com

Vehicle B has nothing on it.

My question to all, is the above Vehicle A a commercial vehicle or not?

My prior association ruled vehicle A was commercial and could not be parked overnight in the driveway. In that association all homes had at least a two car garage and maybe we could rule tighter as the answer was clean out the garage and park it in there overnight. The homeowner was not a happy camper.

I do not think the answer is a compariaion between signage on a vehicle and/or a vehicle wrap. It is what it is.


QuahT
(North Carolina)

Posts:41


12/27/2012 8:59 AM  
Well, let's take a set back here.

When rules ban the parking of a "commercial vehicle" - what was the intent of that rule? Exactly what/why did they want to ban commercial vehicles?

You make the point that signage does not make a vehicle commercial, and I agree with that 100%.

Let's use your example, but remove the signage. 2 identical mini-vans. One is used by a mother of 2 to transport her kids to school and soccer. The other is used by a homeowner to transport people for hire, his business.

Most here would consider his mini van a "commercial vehicle".

So you would want to ban him from parking it?

Again, I don't see the reason to use the term "commercial vehicle" at all in these rules. If you want to ban vehicle with advertising, say so. If you want to ban vehicles over a certain length, say so. If you want to ban ladder racks, say so.
QuahT
(North Carolina)

Posts:41


12/27/2012 9:00 AM  
Forgot to add:

And the funny thing, from what I've seen - a car cover magically transforms a commercial vehicle into a non-commercial vehicle.
PaulT6
(California)

Posts:409


12/27/2012 11:27 AM  
We have some upscale Assns in our area that do not allow outside parking of any vehicle with signage, small or a "wrap", regardless of size. Based on what I have read here some Assns follow the same concept or intent. If your Assn says "No commercial vehicles" allowed outside I think their intent is fairly clear. As mentioned earlier, our Assn has a size limit. I would prefer an outright ban as we are a residentially zoned community, however, it is voluntary for us to live here,

Paul T
QuahT
(North Carolina)

Posts:41


12/27/2012 12:16 PM  
Lol, Paul.

When I first read that, I thought it said "Asians" not "Assns". I was thinking to myself "upscale asians" - what is he talking about?
GlenL
(Ohio)

Posts:5491


12/27/2012 1:21 PM  
Quah, smart car or not, what you have is a vehicle licensed to a company, used to transport the company's employee and goods, essentially a rolling billboard. Like it or not it is a commercial vehicle and subject to the covenant banning them. While it may be more attractive to you than another homeowner's 20 year old rusty beater, she voluntarily and of her own free will bought a home where one of the covenants said no commercial vehicles and violated what she agreed to and got away with it for 18mo until one of her neighbors said enough and reported her.

Now for whatever reason, you think your fellow BOD members should give her a free pass instead of tightening up the rules to make it clear that what is a commercial vehicle is indeed a commercial vehicle. The more you whine about how unfair it is that the Board should have the temerity to enforce against this woman who is a friend of yours the more I begin to wonder, would you feel different if you didn't like this woman? IMO the Board has been more that reasonable with her and given her reasonable options, she should cover it or remove it.

And yes we've dealt with a similar problem, we had a husband and wife who both worked for Progressive Insurance and both drove company vehicles which are well marked and violated our covenant against commercial vehicles. They for some reason didn't have the problem you and your friend have with covering their vehicles.

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

Posts:41


12/27/2012 2:04 PM  
Glen - she isn't a friend of mine. I just like to be logical and fair. The way our CCR's read, it is obvious that whomever wrote that section was talking about types and sizes of vehicles when they said "commercial vehicle". They were not talking about advertising - else they would have said it. They were not talking about the unlabeled vehicle of the Avon Lady, that is used to business. They were talking about dump trucks, buses, etc.

She realizes her only option at this point is to get the membership to agree to a change to the CCR's (or turn her commercial vehicle into a non-commerical vehicle with a magic cover). So we are long past the point of "is that a commercial vehicle" or not. Fact is the BOD can simply ban Smart Cars if they want, and she realizes that.

PaulT6
(California)

Posts:409


12/27/2012 2:06 PM  
Quah,

Should have spelled it out. Agree with Glen, if it looks, walks, and quacks like a duck, it is a duck.

Paul T
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