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Subject: Parking Rules
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HectorR
(Florida)

Posts:58


11/19/2020 7:56 AM  
Hello everyone I have been living in my home since 2002 ( thank God I have been able to pay it off). I have always been involved with the board here and there and served on the board as well. There is some tension in our community right now and it has to do with commercial vehicles. There are some homeowners that own their own business and park their vans or pickups in their drive way ( common area). The property manager in conjunction with the
board is now trying to enforce towing of said vehicles. Some homeowners are furious because they were never advised of these rules when they purchased their homes. There was an amendment done back in 2005 to the parking rules without 2/3rds of the voting interest. As far as I'm concerned, there was never a meeting or discussion regarding parking rules. Below is the amendmen:

Corrective Certificate of Amendment to the Rules and Regulations of Century Serena Lakes, Recorded on 11/2/2007 CFN NO. 2007R 1062772, to wit:



5.30 “All owners’ vehicles must be parked in front of the owner’s unit. All pick up trucks or vans that are otherwise in compliance with Rule 30 of these Rules and Regulations must park in front of the owner’s unit.


5.31 “Commercial Trucks, Trailers, Campers and Boats. No trucks, commercial vehicles, campers, buses, mobile homes, motor homes, monster trucks, tractor pull trucks, limousines, all terrain vehicles (ATV’s). All terrain carts, go-carts, house trailers or trailers of every other description, recreational vehicles, boats, boat trailers, horse trailers, or buses shall be permitted to be parked or to be stored at any places within Century Serena Lakes Townhomes Homeowners Association, Inc, nor in dedicated areas. For the purposes of this Section “commercial vehicles” shall mean any vehicle in which commercial equipment or activity is visible from the exterior of the vehicle, including but not limited to the windows and excess of ten thousand (10,000) pounds, or any vehicle containing three (3) or more axis regardless of weight, or any vehicle displaying commercial signs, lettering, logos or advertisements, or any vehicle intended for transportation of goods, or any vehicle which is not designed and used for customary, personal/family purposes. The absence of commercial-type lettering or graphics on a vehicle shall not be dispositive as to whether it is a commercial vehicle. The prohibitions on parking contained in this Section shall not apply to pick-up trucks no longer than ten (10) feet, or trucks or vans having a gross vehicle weight of less than ten thousand (10,000) pounds with no more than two (2) axles, police vehicles the temporary parking of trucks and commercial vehicles, such as for pick-up and delivery and other commercial services, nor to passenger-type vans for personal use which are in acceptable conditioning the sole opinion of the Board (which favorable opinion may be changed at any time). No on-street parking or parking on lawns shall be permitted.

Subject to applicable laws and ordinances, any vehicle parked in violation of these or other restrictions contained in the Rules and Regulations now or hereinafter adopted may be towed by the Association at the sole expense of the owner of such vehicle. If such vehicle remain in violation for a period of 24 hours from the time a notice of violation is placed on the vehicle. The Association shall not be liable to the owner of such vehicle for trespass, conversion or otherwise, nor guilty of any criminal act by reason of such towing and once the notice is posted, neither its removal, nor failure of the owner to receive it for any other reason, shall be grounds for relief of any kind.”

No vehicle, which cannot operate on its own power, shall remain on the properties for more than twenty-four (24) hours, and
no repair of vehicles shall be made thereon.
This was recorded in Miami Dade county Clerk's of Court.
Florida statues 720:306 (b) Unless otherwise provided in the governing documents or required by law, and other than those matters set forth in paragraph (c), any governing document of an association may be amended by the affirmative vote of two-thirds of the voting interests of the association.

15 years later after the homeowners are parking their commerical vehicles they want to start towing. There are no big trucks in our community it's vans and pickups. Also the property manager has golf carts stored and visable in our community as well. I understand that a community full of commercial vehicles does not look nice but the board waited too long. What can we do?
Thanks.
SheliaH
(Indiana)

Posts:3577


11/19/2020 9:47 AM  
First, the newer owners should have read the rules when they purchased their homes - I'm sure they saw the other stuff about mortgages when they signed all that at closing. If you move into a HOA, it's your responsibility to find out what the rules are - preferably before you buy.

You say " as far as I'm concerned, there was no meeting" about the amendmer. You moved here in 2002 and This went into effect in 2005. Are you saying it took 15 years before you and others found out about this? Especially those who were around in 2005 - how did this get passed without anyone noticing?

The property manager works at the direction of the board, so your issue is with them. So, what type of problems have popped up with these vehicles? Are they so large they're taking up lots of space and now you have a bigger problem with parking, blind spots created with gigantic vans and trucks?? Are some (many?) in disrepair and causing problems with damaging concrete? If people don't like the appearance of commercial vehicles, could that be resolved if the owners would park them in the garage?

You've lived in this community long enough to know that documents can be amended because over time communities and the people living them can and do change. I believe I've seen posts from you before, so you should know how this works. Rally your neighbors together and attend the next board meeting, asking for a special homeowners meeting (maybe two) to discuss the matter and brainstorm ideas.

Read your documents to see how they are to be amended and then ask for documentation on how this one came to be. At a minimum, I would expect to see some board meeting minutes and a vote somewhere - perhaps there was one You forgot about Or forgot to cast a vote and enough people did to get it approved. Since we're talking 15 years ago, it may take a little time to pull that information - if there's no documentation at all, that could be a problem.

From there, the homeowners can discuss how to best address this. Personally, I don't think people should be hampered because they have a take home vehicle - I have one, but it looks like a regular car and our security officers know what it is. For me, the main issue should be if it's in good condition and has current tags. I wouldn't allow the large long distance trucks, especially the cabs, because they're hard on the pavement.

You and your neighbors have a lot of work to do, so have at it. This may also include running others against the current board so it can spearhead what you want. That also means YOU may need to consider returning to the board of your neighbors want you there. Get busy and good luck!







HectorR
(Florida)

Posts:58


11/19/2020 11:02 AM  
Thank you for responding, what I mentioned to the home owners is that we need to work together on this. We need to have some kind of compromise, we do not want our community to look like a truck stop with trucks all over the place. I don't want to start a problem, want to work peacefully with them. We will have to request copies of the minutes of when this amendment took place and votes. I have been advising the home owners not to get the board angry, if we can not get any documentation from the board let's brainstorm a good solution that will work for both sides.
JohnC46
(South Carolina)

Posts:10130


11/19/2020 11:53 AM  
Hector

The BOD has not enforced your Covenants. You will never win everyone's approval. Have at it.
HectorR
(Florida)

Posts:58


11/19/2020 12:03 PM  
Sorry Johnc46, what do mean exactly that the board has not enforced the convenant ?
SheliaH
(Indiana)

Posts:3577


11/19/2020 3:59 PM  
Well then, you have your answer. Nothing is guaranteed, so if you were looking for a foolproof way to address this, sorry. You've lived in your community long enough to know nothing's that simple in HOA land.

Yes some people will object to whatever's proposed, which they have a right to do. You have a right to make your case and if you can't get enough people to agree with you, you either make a better argument of stop, regroup and fight another day. Sometimes good ideas and says of thinking are way ahead of what is can grasp and they need time to get used to it. Ocassionally, it may mean some homeowners have to move on and new ones come who see things as you do and then you proceed.
AugustinD


Posts:4421


11/19/2020 5:50 PM  
Posted By HectorR on 11/19/2020 7:56 AM
There was an amendment done back in 2005 to the parking rules without 2/3rds of the voting interest.
I believe you are mis-reading 720.306. Rules and Regulations typically are amendable by the Board of Directors. Florida Statute section 720.306 provides a second way to amend the Rules and Regs.

-- What do the Rules and Regs say about amendments?

-- What do the Bylaws and CC&Rs say about who writes and distributes the Rules and Regs?

-- Back in 2007, what entity amended (or attempted to amend) the Rules and Regulations?

-- Exactly what do the HOA's CC&Rs say on this issue?

Posted By HectorR on 11/19/2020 7:56 AM

[snip for brevity④ years later after the homeowners are parking their commerical vehicles they want to start towing. There are no big trucks in our community it's vans and pickups. Also the property manager has golf carts stored and visable in our community as well. I understand that a community full of commercial vehicles does not look nice but the board waited too long. What can we do?
How come your group has not submitted a demand to the HOA for presuit mediation, pursuant to FS 720.311 (2)?

I remember prior posts of yours. I recommend that your group chip in and hire an attorney.

I agree that what the Board is doing is quite serious. The topic of restricting trucks and vans has come up at this forum a lot. The courts view restrictions quite dimly at this point, on account of people needing to make a living.
JeffS31
(Virginia)

Posts:38


11/19/2020 5:54 PM  
Posted By HectorR on 11/19/2020 7:56 AM
The prohibitions on parking contained in this Section shall not apply to pick-up trucks no longer than ten (10) feet




Notwithstanding the main point here, even a Toyota Camry is 16 feet long. This seems to be rather sloppily written, or they are just finding a way to exclude all pickup trucks.
DavidF22
(New York)

Posts:73


11/20/2020 11:07 AM  
Despite 2-4 car garages and ample driveways, two of our five board members store their vehicles in guest parking areas, in violation of community rules. So our questions about parking enforcement are ignored.
HectorR
(Florida)

Posts:58


11/20/2020 7:59 PM  
Hi AgustinD attached is what our governing documents say about amendments

Attachment: 11120594156971.pdf

AugustinD


Posts:4421


11/21/2020 7:38 AM  
Posted By HectorR on 11/20/2020 7:59 PM
Hi AgustinD attached is what our governing documents say about amendments
HectorR, each of your governing documents (CC&Rs; Bylaws; Rules and Regs) will have its own section on amending. I request:


-- The section of the Rules and Regs that talks about amendments.


-- All the section(s) of the HOA's CC&Rs that talk about (1) parking; (b) trucks and vans; and (c) commercial vehicles.
HectorR
(Florida)

Posts:58


11/21/2020 7:42 AM  
Oh ok let me get that.
HectorR
(Florida)

Posts:58


11/21/2020 8:06 AM  
Page 1


Attachment: 1112165358371.pdf
Attachment: 1112165364554.pdf

HectorR
(Florida)

Posts:58


11/21/2020 8:07 AM  
Page 3

Attachment: 1112172386571.pdf

AugustinD


Posts:4421


11/21/2020 8:15 AM  
HectorR, go to your full set of Rules and Regulations. Look for a section titled "Amendments" or similar, that talks about the /// process /// for amending the rules and regs. Please quote verbatim this process.

For the third time, please post the Covenants that address parking. (Do you know what "covenants" are, and that they are different from Rules and Regulations?)
HectorR
(Florida)

Posts:58


11/21/2020 1:27 PM  
AgustinD, I know you and everyone else is trying to help, so thank you all.
Below is the covenants, there is nothing in there which speaks to commercial vehicles.
Thank you.

Attachment: 11121271888171.pdf
Attachment: 11121271896054.pdf

HectorR
(Florida)

Posts:58


11/21/2020 1:28 PM  
Page 3&4

Attachment: 11121283614658.pdf
Attachment: 11121283616229.pdf

HectorR
(Florida)

Posts:58


11/21/2020 1:28 PM  
Page 5

Attachment: 11121285366271.pdf

AugustinD


Posts:4421


11/21/2020 5:05 PM  
Hector, thanks for your patience. Here are my observations so far:

-- The "Corrective Certificate of Amendment" filed in Oct 2007 on the first page states that the new Rules 29, 30, and 31 were proposed at a Board Meeting in 2005 and approved by no less than a majority of the Board.

-- Your last five attachments are five pages that appear to be both (1) an Exhibit attached to the Declaration; and (2) the Rules and Regulations originally adapted by the HOA around 2005.

-- At this point, I think the Rules and Regulations are created and approved by solely the Board.

-- When a board creates rules and regulations, two requirements are particularly important. First, the rules and regulations cannot exceed what is in the main body of the Declaration. (This is what I have repeatedly asked you to check. For some reason you and I are not communicating on this point.) Second, per FS 720.304 (1): "The entity or entities responsible for the operation of the common areas and recreational facilities may adopt reasonable rules and regulations pertaining to the use of such common areas and recreational facilities." This means the Board may adopt /// reasonable /// rules and regulations without a vote of the membership.

-- If by some miracle you can dig into the main body of the Declaration and please quote exactly what, if anything, it says about parking, please do. If you do not understand my request, please indicate what you do not understand. Seriously, I think this is the fourth time I have asked you this, and it's dam-ed annoying. This information is critical to being able to do my volunteer duty here and give you advice that might actually help. Without your checking on this, anything I say will be worthless.
AugustinD


Posts:4421


11/21/2020 5:08 PM  
Posted By AugustinD on 11/21/2020 5:05 PM
This information is critical to being able to do my volunteer duty here [snip]
Yes, I wrote this tongue-in-cheek on the one hand. On the other hand, it would be nice to help the folks at HectorR's HOA, because I think they have a legitimate gripe and the Board may very well have violated the Declaration with its parking rules.
KerryL1
(California)

Posts:7660


11/21/2020 5:46 PM  
Hector, there might other names for your "declaration," such as "Covenants," Covenants, Conditions & Restrictions" (AKA CC&Rs), "Deed Restrictions," and maybe more. It's usually a pretty big document and is recorded as a public record in your county.
HectorR
(Florida)

Posts:58


11/22/2020 6:06 AM  
AgustinD, I apologize and in no way shape or form doninwant to cause you or anyone here any fustration. Below is my username and password to my drop box account with u In there you will find our Governing documents from the HOA.
That would be documents I have ever received from the HOA since 2002 when I purchased my home.
www.dropbox.com
Username: [email protected]
Password:ABC123456(all upper case)
Password will changed in 3 days.
Hope this helps.
NpB
(Arizona)

Posts:441


11/22/2020 7:10 AM  
Posted By HectorR on 11/22/2020 6:06 AM
AgustinD, I apologize and in no way shape or form doninwant to cause you or anyone here any fustration. Below is my username and password to my drop box account with u In there you will find our Governing documents from the HOA.
That would be documents I have ever received from the HOA since 2002 when I purchased my home.
www.dropbox.com
Username: [email protected]
Password:ABC123456(all upper case)
Password will changed in 3 days.
Hope this helps.





IMO, Don't give out your personal information online. Read some of the responses I receive to my threads. I would not want any of those people knowing where I live or my name.
AugustinD


Posts:4421


11/22/2020 9:03 AM  
HectorR,

Thank you. Your HOA's Declaration contains no covenant nor restriction pertaining to parking. As I noted above, the Board has the right to adopt reasonable rules and regulations that do not exceed covenants and restrictions in the Declaration. By "Declaration," I mean the main body of the Declaration and not the Exhibits. To repeat: Rules and Regulations are different from, and subordinate to, the Covenants and Restrictions in the main body of the Declaration. The 2005 Board-adopted Rule 31 (recorded with the County in 2007) exceeds the Declaration's covenants and restrictions. Also in my opinion Rule 31 is not reasonable. I consider Rule 31 to be a violation of the law.

I am seeking Florida case law that will address the prohibition on HOA Boards adopting a rule that violates the covenants. Nationwide and in each state, this case law, saying Boards may not create rules exceeding the covenants, is common. As you seem to be aware, such a Board-created rule is a de facto attempt to amendment the covenants without the required vote of the HOA's membership. The courts do not support such Board maneuvers.

Anyone who can cite such Florida case law off the top of their heads, please do.

Pursuant to FS 720.311 (2) (a), I will be drafting a letter for you that is a "Demand for Presuit Mediation." I advise each member of your group to sign it, then mail it certified mail, return receipt requested, to the HOA's registered agent. The registered agent is usually the property manager. You should confirm.

Check back later today for my posting of this letter.
JeffS31
(Virginia)

Posts:38


11/22/2020 9:17 AM  
Posted By HectorR on 11/22/2020 6:06 AM
Below is my username and password to my drop box account



Hector,

It is a very dangerous practice to post your username and password, even if it is temporary.

Dropbox has the ability to allow you to share specific files either to individual people or make them public. Then you can get a link which you can post. Please use that feature rather than exposing your entire account.
AugustinD


Posts:4421


11/22/2020 9:21 AM  
For the archives, I think this Florida law firm explains well the legal principles and Florida legal authorities involved here:

https://www.jimersonfirm.com/blog/2018/12/rule-enforcement-rules-and-regulations-by-association-board/

I am checking (an amateur's "Shepardizing") its citations of:

-- Beachwood Villas Condominium v. Poor, 448 So.2d 1143, 1144 (Fla. 4th DCA 1984). See
https://casetext.com/case/beachwood-villas-condominium-v-poor

-- Mohnani v. La Cancha Condominium Ass’n, Inc., 590 So.2d 36, 37 (Fla. 4th DCA 1991). See https://casetext.com/case/mohnani-v-la-cancha-condo-assn

That these are condos subject to FS 718 does not appear to me to be relevant. The legal principles that prohibit a Board from exceeding its authorities are the same.
AugustinD


Posts:4421


11/22/2020 10:17 AM  
HectorR, see attachment.

You will have to find some mediators and add them to the letter.

If helping your group complete and sign this letter is beyond your abilities, then hire an attorney.

I estimate the cost of this letter prepared by an attorney would be in excess of $3000.

Attachment: 11122175757371.pdf

LetA
(Nevada)

Posts:1047


11/22/2020 11:56 AM  
Does your governing documents have a glossary of terms? How does your HOA define commercial vehicle? It would be difficult to explain to the ombudsman that your HOA tows Honda Fits with a Merry Maids sign on it wile someones Ford F-450 Cummings Diesel Dualie with 5th wheel is left untouched.
JohnC46
(South Carolina)

Posts:10130


11/22/2020 1:24 PM  
Posted By LetA on 11/22/2020 11:56 AM
Does your governing documents have a glossary of terms? How does your HOA define commercial vehicle? It would be difficult to explain to the ombudsman that your HOA tows Honda Fits with a Merry Maids sign on it wile someones Ford F-450 Cummings Diesel Dualie with 5th wheel is left untouched.



This is true and in my last HOA the Merry Maids vevicle had to go but not the unsigned F450. Makes sense to me.
AugustinD


Posts:4421


11/22/2020 3:58 PM  
Posted By HectorR on 11/19/2020 7:56 AM
There are some homeowners that own their own business and park their vans or pickups in their drive way ( common area).
HectorR, I am looking at the "Definitions" section of your HOA's Declaration, especially the definitions of "Common areas," "Limited Common Areas," and "Lot.: Please tell me why you think the driveways are common area.

I do see that, if each driveway is within the "lot" boundaries shown on the plat, then the driveway is neither common area nor limited common area.
AugustinD


Posts:4421


11/22/2020 3:58 PM  
Posted By LetA on 11/22/2020 11:56 AM
Does your governing documents have a glossary of terms? How does your HOA define commercial vehicle?
-- HectorR's HOA's Declaration has a glossary of terms, but the glossary does not define "commercial vehicle." The Rule in HectorR's HOA's Board-created Rules and Regulations provides the definition. See the first post in this thread.

-- The Declaration gives the Board the right to adopt reasonable rules "governing the use of the common areas... " However, from my reading of the Declaration so far, I do not think the driveways in front of the townhomes (where owner's vehicles are typically parked) are common area. I also do not think the driveways are limited common area. Yet here is the Board telling the HOA members what they may and may not park on the Owners' individual driveways.

For the record: This is not a condo. It is a townhome HOA community subject to FS 720.
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