By: Jeffrey Smith, Esq.
Rarely a week goes by when attorneys do not field calls from board members or managers asking whether or not the association can enforce its rules on streets running through the community. Sometimes these questions have simple answers, and other times, research will need to be conducted to determine the answer.
The first step in obtaining an answer is to determine whether the streets running through the community are public or private. If the streets are private, and are subject to the governing documents of the association, the next step is to determine whether the governing documents provide authority to regulate parking. Such authority is typically found under the “restrictions” section of the declaration and is often specifically labeled as “parking”, “vehicles”, or something similar.
If your community’s governing documents prohibit or restrict parking of certain types of vehicles, (such as recreational or commercial vehicles, trucks, vans, or mobile homes) these types of vehicles must be clearly defined in the association’s rules. While each of these terms may provide a clear image in each person’s head, different people may have different images of, what a “commercial vehicle” is. In situations like this, it is important to have rules that are very specific to allow smooth enforcement. Additionally, make sure the association complies with all notice requirements that may be set forth in the governing documents.
If the streets running through the community are public, the association might not have authority to enforce its restrictions on the street regardless of any verbiage contained in the governing documents.
Colorado cases have not specifically addressed this issue, but in reviewing case law from other states, we found two primary court philosophies: 1) covenants are contracts between homeowners and their associations, and these contracts require owners to comply with their association’s restrictive parking covenants, regardless of whether the streets in question belong to the city or county; and 2) associations have no authority to regulate a street that is not owned by the association or part of the community, in the same way that associations cannot regulate parking by its owners in a neighboring community.
When evaluating whether an association has authority to enforce its covenants on public streets, several factors must be examined, including but not limited to:
- whether the community declaration was recorded prior to the streets being dedicated to the municipality;
- the definition and legal description of the “community” and a determination as to whether streets are actually defined as part of the community; and
- specific restrictions in the declaration with respect to parking.
Ultimately there is no black and white answer to this question. So it is imperative for associations to consult with their legal counsels prior to taking on any enforcement of their restrictions on public (or even private) streets in the community.
Please contact an Altitude Community Law attorney at 303.432.9999 if you have questions about enforcement of restrictions on streets running through communities.