Declarations for most associations typically contain parking restrictions and most restrict commercial vehicles from parking within the community. Some associations have rules which contain parking restrictions of this nature as well. However, the majority of commercial vehicle restrictions do not define what is meant by “commercial” vehicle. A dictionary definition could be a vehicle used for business. But what types of vehicles are included in that definition? It is often left to the discretion of the board or parking committee to determine violations on a case by case basis. This leaves the association open to claims of selective enforcement and acting arbitrarily and capriciously and hinders the association’s ability to enforce the parking restrictions or rules in court should this become necessary.
Remember, one of the purposes of covenants and rules is to provide notice to the owners of what is prohibited and restricted in order to encourage voluntary compliance. When an owner does not know or understand what is meant by “commercial” vehicle, he or she cannot know whether they are in violation of the restriction, thereby making voluntary compliance improbable. Additionally, having clear and concise parking restrictions will benefit the association should it need to enforce its restrictions in court. When restrictions or rules are drafted in a vague and unclear manner, a court must interpret the rule to determine if there was a violation. Any ambiguity is interpreted against the drafter. If a restriction or rule is drafted clearly and not open to interpretation, a court will not have the option of misinterpreting the true meaning.
If the Declaration restricts commercial vehicles but gives no further explanation or definition of what is meant by commercial vehicles, then it is very important for the association to draft a rule or resolution defining commercial vehicles. Definitions for commercial vehicles can be developed from a variety of sources. The Department of Motor Vehicles (DMV) has a definition that some associations have referred to in developing their own, but the DMV’s definition is usually not as restrictive as an association would like. The DMV’s definition of commercial vehicles includes, but is not limited to, “any vehicle over 7,000 pounds” or “any vehicle with no passenger seats.” A pound limitation would require the association to obtain gross vehicle weight of any vehicle before taking any enforcement action. This can have some unintended results depending on the weight selected, such as prohibiting 1-ton pick-up trucks. Some associations have found it helpful to define commercial vehicles as those that are registered as “commercial” vehicles with the DMV. But, again, that may not be as restrictive as the association would like. For example, a truck with lettering or signage may be registered as a passenger vehicle with the DMV but the association may want to consider it as a commercial vehicle.
Other sources to review for help in defining commercial vehicles are the dictionary, local ordinances, state statutes and Community Associations Institute publications, to name a few. Whatever your source, it is important when drafting a definition for commercial vehicles that the association first determine what it is trying to prohibit and why. We have found it is more helpful in rules and definitions of this sort that the vehicle be defined by its characteristics, rather than its use. Consider the following:
- Is the Association trying to prohibit just large vehicles?
- All vehicles with signage on the sides?
- Certain types of vans with extended side panels?
- Is it the use of the vehicle that is the issue?
- Is it all of the above?
In other words restrict a vehicle by its characteristics, i.e., vehicles with signage, extended panels or by its size, rather than whether it is “used” commercially. How can one tell the latter? What if a van with signage is also used to pick the kids up from school? Is it then considered “commercial?”
Also, be detailed when considering the individual characteristics. If you want to prohibit signage, what type of signage? Magnetic signs? Painted signs? Lettering of any kind? Determine what it is you want to prohibit with each individual characteristic and include that in the definition of commercial vehicles. Also, consider ladders on vehicles or other item that is usually included on a vehicle that is used for business. The vehicle itself may be an ordinary pick-up truck, but it has a tool box in the back and ladders on the top. Should the association prohibit that as commercial? It is important to think of these questions prior to drafting the rule or definition for commercial vehicles. It will provide you with a clearer definition if you go through a list of this nature prior to drafting the definition. You should also have your attorney review your rule or definition before proceeding with enforcement.
Once you have a clear restriction or rule for commercial vehicles in your association, you can enforce it as you would other parking restrictions or rules. One available option is to impose fines against the owner for violation of the restriction or rule, after notice of the violation and an opportunity for a hearing, of course. Another option is towing. Because this option can have a number of negative consequences it should be used only after consultation with the association’s manager and legal counsel. The board should have in place a specific policy and procedure to follow and then follow it exactly. The board should also be familiar with and follow any local towing ordinances. Unless the vehicle is parked in a fire lane or otherwise impeding emergency vehicles, it is strongly recommended that associations provide at least 72 hour notice to the owner before towing from common areas. It is never recommended that an association go on private property to tow a vehicle.