Posted By JanetB2 on 03/28/2020 10:31 PM
Posted By JohnC46 on 03/22/2020 1:33 PM
Classic example is parking if streets not private. County codes can say overnight street parking is allowed but Covenants say no overnight parking allowed. Members of the HOA have to follow the Covenants as they agreed to them. Now the public could park overnight as they did not agree to the Covenants.
I would respectfully disagree on this issue. If the HOA does not OWN the property they do not have the right to regulate PUBLIC property. Some states such as NV have even had to add such language to their HOA Statutes to get this point across when HOA’s in past were fining owners regarding use of the public streets.
My recommendation is read your State Statute definitions ... and for example my state notes:
"Common interest community" means real estate described in a declaration
with respect to which a person, by virtue of such person's ownership of a unit, is obligated to pay for real estate taxes, insurance premiums, maintenance, or improvement of other real estate described in a declaration. Ownership of a unit does not include holding a leasehold interest in a unit of less than forty years, including renewal options. The period of the leasehold interest, including renewal options, is measured from the date the initial term commences.
Again ... “Real Estate Described in a Declaration” is going to be real estate the owners own and any “common area” property owned by the HOA. If the common area property does not contain streets as private property then it is not owned by the HOA. If the declaration does not note any maintenance or improvement of the streets as “other real estate described in the declaration”, then it is not considered part of any “common interest community”.
My present HOA attorney and my last HOA attorney (both in SC) would disagree with you.