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Subject: Street parking (yet again)
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GlenM4
(Tennessee)

Posts:141


09/17/2018 12:35 PM  
Hello, Our CCRs says this.

Vehicles. No automobiles which are inoperable or being stored shall be repeatedly parked, kept, repaired or maintained on the street or lawn of any lot.


now currently we allow parking on street cause there really is no way to enforce this. As inoperable is not defined nor is stored. Also i read it as only inoperable or stored vehicles shall not be repeatedly parked, kept, or repaired or maintained on the streets.. What about operable vehicles? is this saying they can be?


public street not gated.
BillH10
(Texas)

Posts:671


09/17/2018 12:58 PM  
Glen

What does your local governing jurisdiction and code say regarding inoperable cars, where they can be parked, worked on, etc?

I believe, with a few exceptions I have heard of around the country, your documents cannot address or restrict what takes place on public streets. What takes place on lawns is another matter as the lawn is generally private property. Your CC&Rs can address what takes place on the lawns.
ArtL1
(Florida)

Posts:140


09/17/2018 1:01 PM  
It also matters if you're gated, and therefore privately [HOA] owned streets.
GlenM4
(Tennessee)

Posts:141


09/17/2018 1:11 PM  
The main issue is , does anything in that statement say you can not park a car on the side of the road.

and per first post , its not a gated community
BillH10
(Texas)

Posts:671


09/17/2018 1:25 PM  
Glen, my reading is that operable cars can be repeatedly parked on the street.

However, in the vast majority of jurisdictions around the country, the HOA cannot dictate what takes place or does not take place on public streets as the HOA does not "own" the street, the local governing jurisdiction does. That renders the CC&R language regarding what can be parked on the public streets when, by whom, or under what conditions, moot.
GlenM4
(Tennessee)

Posts:141


09/17/2018 1:49 PM  
Bill , All laws i have seen does not say "yes you can " nor does it say "no you cant" how ever it is very well worded to ignore both the yes you can or no you cant.

for instance it has this .

Except as otherwise provided in this section, every vehicle stopped or parked upon a roadway where there are adjacent curbs shall be so stopped or parked with the right-hand wheels of the vehicle parallel to and within eighteen inches (18") of the right-hand curb.



now that line to me is saying if you are parked on the side of road then you must do this.. but its not saying you can? or is it?
GeorgeS21
(Florida)

Posts:3800


09/17/2018 2:02 PM  
Seems simple on this one ...

"No automobiles which are inoperable or being stored shall be repeatedly...."

Uh ... hard to make it shorter ... cars that are broken or being stored can't be kept on the street once someone catches you ...
BillH10
(Texas)

Posts:671


09/17/2018 2:19 PM  
Glen, I'm afraid I do not understand the point of your most recent post.

What is the difference between must and can in the scenario you described? If you are parking on the street which falls under the jurisdiction of that sentence, you must park within 18" of the curb (and observe the other language) but you can park less than 18" of the curb if you wish.

Perhaps it would help if you would describe the underlying issue.
PaaN


Posts:0


09/17/2018 2:35 PM  
The CCRs only apply to an owner/member of the association.

Said owner/member is contractually prohibited from said street parking on the publicly owned street.

A non owner / non member of the 'public at large' is only obligated to follow city/town/county parking regulations.

The BIG BIG BIG issue for the HOA is:

? how does one determine WITH CERTAINTY who owns the parked car ?


ergo:

UNENFORCABLE in actuality
GlenM4
(Tennessee)

Posts:141


09/17/2018 2:55 PM  
I guess what I am trying to ask. Is it a city right to be able to park on the street. can the HOA take that right away? Is it not a city right but the city tells you how to park on street if you have the right to park on street.
TimB4
(Virginia)

Posts:17599


09/17/2018 4:23 PM  
Glen,

On public streets, deed restrictions can take away the owners ability to park on the street. However, as has been pointed out, that restrictions only applies to the owners. Any non-member of the Association can park on the public street if the city allows it.


There was a big issue about this in AZ awhile back. AZ actually passed a law prohibiting HOAs from having such restrictions on public streets.

See: https://www.thenewspaper.com/news/16/1641.asp

and http://www.ahwatukee.com/news/article_796cc894-e048-11e2-a5a1-001a4bcf887a.html

Regarding TN, this is something I found dated 2015. I do not know what became of the recommendation or the bills:

https://www.tn.gov/content/dam/tn/tacir/commission-meetings/2015-january/2015Tab%209HOA_MEMO.pdf

JohnC46
(South Carolina)

Posts:10944


09/17/2018 4:27 PM  
Glen

It is my understanding that an HOA's rles can be tougher than the city rules as people signed an agreement (the Covenants) agreeing to be.

Street parking is a classic case. Our streets are public and our town allows for overnight street parking. Our Covenants say no overnight parking on our streets. If we called the town, they would say an HOA issue, not ours. We can fine owners for overnight parking. We cannot fine non-owners for overnight parking. I expect we could tow owners but not a road I care to go down.
TimB4
(Virginia)

Posts:17599


09/17/2018 4:29 PM  
Found the answer to what happened to the bill:


2013-2014
108th General Assembly
(Introduced - Dead) As introduced, restricts the ability of homeowners' associations to regulate parking on public streets, to ban political signs on private property, and to impose fines in excess of the monthly dues owed by property owners within the homeowners' assoc...

Taken Off Notice For Cal. in s/c Business and Utilities Subcommittee of Business and Utilities Committee

https://legiscan.com/TN/research/HB2060/2015


Seems the TN Association of Realtors opposed the bill:

https://tnrealtors.com/wp-content/uploads/2014/06/2014-State-Legislative-Wrap-Up.pdf
GlenM4
(Tennessee)

Posts:141


09/17/2018 5:58 PM  
Thanks tim, So it looks like HOA can add rules and regulations to parking on public street. i assume this is due to the city never saying you can or can not. but just saying if you do. our hoa wants to change it so we can not park on rule, just wanted to make sure its even allowed before going to next step.
TimB4
(Virginia)

Posts:17599


09/17/2018 7:19 PM  
Posted By GlenM4 on 09/17/2018 5:58 PM

Thanks tim, So it looks like HOA can add rules and regulations to parking on public street.




No. Rules/Regulations are for activity on common areas.

An amendment to the CC&Rs would be required to restrict parking on the public street.
GlenM4
(Tennessee)

Posts:141


09/17/2018 7:44 PM  
We have a "Code of Conduct" section, instead of writing new rules to CCRs could we not just define storage, and in-operable there? code of conduct takes 51% at the meeting to pass. If say, we define any more then 24 hours is considered stored.

don't get me wrong i am against this. as it would be near impossible to prove a car has not moved in 24 hours. but i am more concerned as to if i can define the current rule in the CCR in the code of conduct.
PaaN


Posts:0


09/17/2018 7:50 PM  
must be an actual restriction in the covenants

an amendment to the covenants 'usually' requires 2/3 AYE votes of the ENTIRE membership
GlenM4
(Tennessee)

Posts:141


09/17/2018 8:19 PM  
So something like this would not work?

Current Covenants
Vehicles. No automobiles which are inoperable or being stored shall be repeatedly parked, kept, repaired or maintained on the street or lawn of any lot.

Added Cod of Conduct (vote to add this)
Definitions
Inoperable - can not be started
Stored - not moved in over 24 hours
repeatedly - More then 3 times in 1 week



Of course these would not be the exact definitions, but you get the point. we keep the covenants as it is, and just add definitions to the COC to define the current wording?
TimB4
(Virginia)

Posts:17599


09/18/2018 12:00 AM  
Glen,

That you could do as your defining. Of course, it would be better if the definitions are in the covenants themselves.

JohnC46
(South Carolina)

Posts:10944


09/18/2018 3:59 AM  
Glenn

If the vehicle is registered and insured and legally parked who is to decide if inoperable?
Also what if legal, but the owner is out of town for a month so the vehicle has not been moved for a month?
PaaN


Posts:0


09/18/2018 5:22 AM  
..... Of course these would not be the exact definitions, but you get the point. we keep the covenants as it is, and just add definitions to the COC to define the current wording? .....



Your 'end around play' is a nice try, but, does NOT change or amend the Covenants.

The COVENANTS are the ONLY contract and can NOT be modified in any way other than an amendment.


If the current wording is vague and capricious the courts have ruled (generally) that it is unenforceable.


Why on earth are y'all concerned about parking ON A PUBLIC STREET ? !
GeorgeS21
(Florida)

Posts:3800


09/18/2018 5:33 AM  
Glen,

No, you have what you have.

I believe your interpretation is inaccurate.
TimB4
(Virginia)

Posts:17599


09/18/2018 6:05 AM  
Glen,

Keep in mind that what you propose would only apply to inoperable vehicles. Per your CC&Rs, operable vehicles can be stored or repeatedly parked on the street (or technically the lawn).

The argument would be that Expressio Unius Est Exclusio Alterius. That is, the express mention of one thing excludes all others. It has been argued and upheld in courts.

Therefore, as others have said, how does the Association prove the vehicle is inoperable?

The fact that it hasn't been moved does not mean it is inoperable.


Personally, I think the intend of your covenants was to keep out shade tree mechanics, fluids from repairs, vehicles on blocks, etc.
BillH10
(Texas)

Posts:671


09/18/2018 6:08 AM  
I am going to disagree with those who believe the HOA can publish guidelines regarding what takes place on public streets and sidewalks in an association. As I remarked earlier, the HOA has no jurisdiction over the public streets and sidewalks, only the local political entity (city, town, village, borough, county, or whatever) can mandate anything from parking to bicycle riding to playing games to chalk drawing on either surface.

The HOA covenants can only address activities, buildings, etc. which are on or within the boundaries of association common property or private property with deed language which makes the private property part of the HOA. It matters not whether the individual is an owner in the association or a visitor.

For example, the HOA can make no rules regarding speed limits on public streets contained within the association, only the local governing authority can do that. The same holds for playing baseball in the street, drawing on the sidewalk with chalk, or any other activity. Nor can it specify women walking on the sidewalk cannot obscure their faces, or that men must wear baseball caps, or that children cannot wear shorts, or, to go to an extreme, that motorcycles cannot be ridden on the public streets or that trick or treaters cannot walk on the sidewalks.

I have read of one court ruling, in Maryland I believe, which did somehow empower the HOA to make rules regarding public streets. I have not read the ruling; I only recall reading it on a forum such as this.

As the Board President of the sub-association in which we reside, we had a long conversation with our attorney about enforcing language in the covenants regarding restrictions on public street and sidewalk activities when the gates were removed and the streets were dedicated to the city. His guidance was to forget about every bit of language in the documents which placed restrictions on the streets and sidewalks, only the city had jurisdiction and authority to do so after the streets and sidewalks were no longer private. He told us he would not defend the association should a lawsuit ensue if compliance activities were attempted on parking and other activities on public streets and sidewalks.
GlenM4
(Tennessee)

Posts:141


09/18/2018 6:18 AM  
Bill that is my concern, that over all it dont matter cause we dont have rights to say anything about public street use. But I cant find anything that says we can or cant do this.

Tim , I belive what the hoa is wanting or at least the ones trying to get this passed. Is to stop cars from staying parked on the street for days , weeks. I think they want to define stored. So this way if a car is parked for long period of time , we can consider it as being stored. And thus , hopefully have it moved.

BarbaraT1
(Texas)

Posts:411


09/18/2018 7:04 AM  
Let's assume you can creatively interpret your documents to uphold a ban on street parking. How do you plan to enforce it? How will you know what car belongs to what owner? Who is going to patrol the streets 24/7 to ticket vehicles? Do you think a towing company will tow from a public street at the request of an HOA? Are you willing to take it to court if owners ignore violation letters? Can your Association afford to go to court over every parked car?
TimB4
(Virginia)

Posts:17599


09/18/2018 4:16 PM  
Bill,

It has been upheld in several courts that IF the restriction is within the covenants, then the restrictions stand (but only for those covered by the restrictions). This is why AZ passed the law it did.

Said restrictions would not apply to any guest or non-member of the Association. This is why it's difficult to enforce such a restriction.

As everyone is aware, the covenants are [essentially] a contract between all owners. One can (and often do) agree to things in a contract that they are not aware of.

If I have more time tonight, I'll do some research and post it.
JohnC46
(South Carolina)

Posts:10944


09/18/2018 4:47 PM  
Glen

I am concerned that you (or others) are attempting to read into your Covenants something that is not there.

We have parking turnouts along several of our streets. Recently a neighbor complained a truck had been parked there for over a month. When I examined the vehicle it is properly registered, appears operable, in good shape, and is legally parked. I told the neighbor based on that, we can do nothing about it.

You are facing a $hit show if you try to remove a vehicle without explicit proof.

TimB4
(Virginia)

Posts:17599


09/18/2018 6:21 PM  
Research:

Street Parking Enforcement Texas HOA with a link to the legal opinion given by their attorney.

Homeowner’s Associations May Prohibit Parking Cars in the Street FL legal blog

VERNA v. LINKS AT VALLEYBROOK NEIGHBORHOOD ASSOCIATION INC NJ Superior Court ruling

Parking on Public Roads From legal newsletter. Discusses case above.

MARYLAND ESTATES HOMEOWNERS' ASSOCIATION, Plaintiff/Respondent, v. Karen PUCKETT 2996 Missouri appeals court decision (seems to be the basis of the case law on this topic)

Can Charlotte HOAs prevent on-street parking? 2013 article in Charlotte Observer

TimB4
(Virginia)

Posts:17599


09/18/2018 6:48 PM  
Posted By GlenM4 on 09/17/2018 12:35 PM
Hello, Our CCRs says this.

Vehicles. No automobiles which are inoperable or being stored shall be repeatedly parked, kept, repaired or maintained on the street or lawn of any lot.





Glen,

In my laypersons opinion, based on the language of your CC&Rs and my research, your Association can prohibit inoperable vehicle from parking on the public street. Your Association can not prohibit operational vehicles from parking there. The only way you can prevent an operational vehicle from parking there is if it's being stored. Of course, that term is ambiguous.

I do encourage your Association to define inoperable.
I also encourage your Association to define stored.

Here are some definitions:

inoperable from Merriam Webster
inoperable from Cambridge Dictionary
inoperable CA statute on vehicles


stored dictionary.com


Option:

petition the city/county for specific restrictions on the street. If the streets are narrow, safety concerns on the ability of emergency vehicles to navigate the streets might be an argument the city/county would listen to.
PaaN


Posts:0


09/19/2018 5:03 AM  
Posted By TimB4 on 09/18/2018 4:16 PM
Bill,

It has been upheld in several courts that IF the restriction is within the covenants, then the restrictions stand (but only for those covered by the restrictions). This is why AZ passed the law it did.

Said restrictions would not apply to any guest or non-member of the Association. This is why it's difficult to enforce such a restriction.

As everyone is aware, the covenants are [essentially] a contract between all owners. One can (and often do) agree to things in a contract that they are not aware of.

If I have more time tonight, I'll do some research and post it.





PRECISELY CORRECT
BillH10
(Texas)

Posts:671


09/19/2018 8:26 AM  
Tim, thank you for the links, especially the one for the HOA in Austin.

I am familiar with Attorney Cagle, he is the author of a handy reference guide for HOA and Condominium associations in Texas. His explanation of the differences between Chapters 209 of the Property Code which pertains (mostly) to HOAs and Chapters 81 and 82 which pertain to condominiums has been especially helpful as we manage properties which fall under all 3 chapters.

I read the posted comments below Cagle's opinion regarding on-street parking and the rebuttals, especially those from an owner in the subject Association who appears to also be an attorney. Her points are well taken. I am not qualified to opine as to which attorney is the more correct or likely to prevail.

There is a term I have seen used by those on one side of the climate change "debate" (and, I'm not taking sides on the subject although I am trained in meteorology and climatology), that term is "settled science". Others do not so believe.

Absent any rulings in Texas on the subject I believe a variation on the term "settled science" is applicable here; that variation would state the ability, or lack thereof, of a POA to create rules regarding public streets and sidewalks is not "settled law", at least not at present in Texas.

Thank you again for the research and the links.
PaaN


Posts:0


09/19/2018 9:21 AM  
Posted By BillH10 on 09/19/2018 8:26 AM
Tim, thank you for the links, especially the one for the HOA in Austin.

I am familiar with Attorney Cagle, he is the author of a handy reference guide for HOA and Condominium associations in Texas. His explanation of the differences between Chapters 209 of the Property Code which pertains (mostly) to HOAs and Chapters 81 and 82 which pertain to condominiums has been especially helpful as we manage properties which fall under all 3 chapters.

I read the posted comments below Cagle's opinion regarding on-street parking and the rebuttals, especially those from an owner in the subject Association who appears to also be an attorney. Her points are well taken. I am not qualified to opine as to which attorney is the more correct or likely to prevail.

There is a term I have seen used by those on one side of the climate change "debate" (and, I'm not taking sides on the subject although I am trained in meteorology and climatology), that term is "settled science". Others do not so believe.

Absent any rulings in Texas on the subject I believe a variation on the term "settled science" is applicable here; that variation would state the ability, or lack thereof, of a POA to create rules regarding public streets and sidewalks is not "settled law", at least not at present in Texas.

Thank you again for the research and the links.




Absolutely correct.

BUT

If the RESTRICTION barring a 'covenantee' (to coin a phrase) is contained within the actual Covenant then it becomes a contractually AGREED matter between the parties. NOT the public at large, but, the 'coventees' are barred. UNENFORCABLE IN PRACTICE

eg. No pink paint permitted.
MalakA
(Virginia)

Posts:10


04/10/2021 2:20 PM  
This does have me asking a question. I live in Virginia. My street is public. With COVID, obviously we are all home more, and my kids have to park on the street, because not everyone can fit in the driveway. Most of the neighborhood has 3 car garages, but we don't. So can an HOA prevent us from parking on the street?
JohnC46
(South Carolina)

Posts:10944


04/10/2021 2:34 PM  
Malaka

If it is in your docs that no overnight street parking is allowed, by living there you agreed to abide by the docs. Even if the city says one can park overnight if the docs you agreed to say no, the docs win out.
JohnC46
(South Carolina)

Posts:10944


04/10/2021 2:47 PM  
Fines, paperwork, liens etc. I have seen the actual cost end up being two to 3 times the original fine amount especially if I have to take my valuable time and get things done. That will be $150 per hour plus expenses and I warn you, my expenses are a bytch......LOL
BenA2
(Texas)

Posts:872


04/10/2021 3:09 PM  
This law says that IF you stop or park, it has to be on the right side of the road. So it essentially says that you can't park on the left side of the road. There is no need to say you can do something because you can do anything that is not prohibited.
BenA2
(Texas)

Posts:872


04/10/2021 3:12 PM  
I was only referring to the parking law that was quoted.
TimB4
(Virginia)

Posts:17599


04/11/2021 6:04 AM  
MalakA,

It's best to start a new topic vs. reactivating an old topic.
This is because laws change and what was good advice a few years ago could be bad advice today.
It's also possible that your question will get lost and others will simply rehash the original posters question.


To answer your question, as John pointed out, it will depend on the language in your governing documents. Parking restrictions for private roads can be in any document (as the Association has control over common area and common elements). Parking restrictions for public roads should be within the CC&Rs (aka covenants, deed restrictions, etc.).
MalakA
(Virginia)

Posts:10


04/24/2021 5:11 PM  
Good point. I can do that. I re-activated the old thread to keep the discussion together, but that's a good reason not to. John made some points, but the issue is that each state has different rules. For example, in Virginia, no HOA can actually enforce parking restrictions on public roads, other than to fine. And the fine is governed by legislature to not exceed $900. So in Virginia, you can't tow the car for example. That's a state-specific restriction. South Carolina may be different. In any case, I'll start a new thread (but still read what everyone has put so far).

thank you all!
MalakA
(Virginia)

Posts:10


04/24/2021 5:16 PM  
Sorry, last comment. Yes, it's the enforceability I'm looking into. I know they can't tow. Va law is very specific. And to be honest, I think the way it is written is subject to interpretation. It is clear the intent of the document wasn't really to ban all street parking of any kind. It was looking at things like campers out front, boats, cars without license plates, real issues. So the truth is the HOA (or rather a couple of obsessive members of the board) are taking an interpretation that wasn't really intended, and the other issue is neighbors have street parking all the time. Part of the issue is they just don't like that we don't have shiny new expensive cars out front. It isn't really my intent to just ignore the rules. It's more that they are being unreasonable in approach and application.

but anyways, I'll start another thread.
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