In this day and age, owning a vehicle is a necessity and it seems that every family owns a minimum of two vehicles. Due to this trend and the limited number of parking spaces available in many communities, many associations have adopted parking rules and restrictions. Despite the existence of such restrictions, it is not unusual for owners and their guests to violate these rules in any number of ways, including parking in spaces where parking is not permitted, such as streets, fire lanes, or reserved parking spaces that belong to other owners; leaving their vehicles overnight in spaces that are not intended to facilitate overnight parking; or parking or storing vehicles such as motor homes, trailers, and abandoned or inoperable vehicles when specifically prohibited. This article will discuss the enforcement process that associations should consider when faced with violations of their parking restrictions.
Clearly State the Rules
The first step in enforcing parking restrictions is preventing such violations from occurring. One method of doing this is to make sure the restrictions use simple concepts and are clearly stated. Drafting restrictions using clear and unambiguous language, will help to prevent violations based on residents’ misunderstanding of what the rules are actually trying to prohibit.
If your covenants prohibit or restrict the parking of certain types of vehicles, such as recreational or commercial vehicles, trucks, vans or mobile homes, then these terms must be clearly defined in your rules. The definitions must be objective and unambiguous from which a lay person can clearly determine which types of vehicles are permitted and which are not. If your covenants prohibit parking in certain areas, make sure the boundaries of those areas are clearly defined in your rules.
Additionally, having clear and concise parking restrictions will benefit the association should it need to enforce its restrictions in court. When rules are drafted in a vague and unclear manner, a court must interpret the rule to determine if there was a violation. Many courts choose to interpret rules favoring homeowners and not associations. Accordingly, if a rule is drafted clearly and not open to interpretation, a court will not have the option of misinterpreting the true meaning of that rule.
To further illustrate this point, consider the following examples:
Example No. 1: No commercial vehicles, trucks, vans or trailers may be parked within the community for a period exceeding eight (8) hours.
Example No. 2: The following types of vehicles are prohibited in the parking areas.
In most cases when enforcing covenant and rule violations, a good first approach is to personally contact the violator and politely inform him/her of the infraction. Many residents that violate rules, do so unknowingly and unintentionally, and upon being informed of their violation, will gladly cure it.
When this fails, an association may choose to fine violators for the violation of the covenant or rules. After proper notice of the violation and an opportunity for a hearing a fine may be imposed pursuant to an Association’s governing documents.
Another option is the use self-help remedies in enforcing its parking restrictions. Although this may seem easier and cheaper then getting your attorney involved, associations should be very careful in exercising such remedies. A good example of a typical self-help remedy that associations often exercise incorrectly is towing vehicles that violate association covenants. Remember that towing a vehicle is depriving someone of property that they own; therefore courts are very strict when it comes to complying with all the legal requirements to do this.
An association’s inquiry prior to towing a vehicle must be twofold. First, does the association have authority to tow pursuant to its governing documents? Second, does the association have authority to tow pursuant to the law? Before an association tows a vehicle, it must first make sure its governing documents give it authority to do this. Therefore, your declaration, articles of incorporation and bylaws must be carefully reviewed to determine if express or implied authority is given to the association to tow illegally parked vehicles. In some instances, that will mean consultation with your legal counsel.
Once the association is satisfied that it has the authority to exercise the particular self-help remedy, it must also make sure it is not violating any state statutes or local ordinances by towing. Some local ordinances, for example, prohibit towing vehicles unless a 72-hour written notice is provided. Accordingly, the association should ensure it fully complies with all requirements imposed by statute or local ordinance pertaining to towing or any other self-help remedy it wishes to exercise. Failure to strictly comply with the statutes and ordinances can result in potential liability for the association or association personnel.
Although there is no method guaranteed to solve all your parking violation problems, there are steps you can take to help curtail the number of violations in your community: clear parking rules; effective communication; having an enforcement policy in place and being very careful when it comes to self-help remedies.