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Can HOA restrict street parking on public street?

I’ve contacted the Mesa City Planners office, and the Mesa Tax Commissioners office and both state the street I live on E Elena Ave in Mesa is a public street, the signs on the street also say city of mesa, which is another indication of a public street, yet my HOA is still issuing $50 fines to residences for vehicles parking on the street in front of resident’s home, Additionaly the registration of the vehicles is not checked.
I was fined for a vehicle that was not registered to anyone who lives in my houshold. How do I get them to stop issuing these fines, and refund homeowners the fines that the HOA has issued?

30 Responses

  1. Dennis Legere

    Mike;

    HOA’s have a fundamental right to write rules to control their common property, that is property that they actually own. However developers and their attorneys have frequently expanded that authority by simply adding in the CC&R’s restrictions on parking on streets that they do not own. If challenged in court these CC&R provisions would be found invalid on the grounds that they violate public policy. The city owns the streets they and only they can regulate those streets. I will not that if the CC&R’s do not specifically authorize street parking restrictions the association is not free to write rules that are not authorized in the CC&R’s. In 2016 the Arizona legislature made this fact clear, banning any planned community to place restrictions on the uses of streets owned by municipalities. See ARS 33-1818. The only problem with that legislation is that it grand fathered any CC&R restriction that existed prior to the enactment of that legislation. however if any change to the CC&R is recorded for any reason the provision on roadway restrictions are invalidated immediately.
    So to answer your specific question what you can do depends on your specific CC&R’s. If they contain clear restrictions on street parking than the only course of action you can take is to challenge the legitimacy of that restriction in Superior court with the assistance of a attorney competent in property servitude law, on the ground of “violating public policy”. If your CC&R’s contain no such restrictions but your association has enacted rules limiting parking on public streets then they are violating Arizona law and you can challenge that with a petition to the Arizona Department of Real Estate.

    hopefully this helps
    Dennis

    1. Rob Henrickson

      The Surprise farms II HOA, just this month, amended the parking rules that they say replace all previous resolutions and rules related to parking. Does this mean the parking restrictions are now invalid?

      1. dennisl

        Rob,
        Changing rules for parking does not invalidate anything. What the law says is that if an association has publicly owned streets and they change and record their CC&R’s for any reason, after Dec 31 2014 they can no longer regulate the streets that are owned by the municipalities only the municipality can do that from that date forward. If the association owns the streets they have the absolute right to regulate the use of those streets in any way they see fit and that law does not apply to them.
        Dennis

    2. Brian Szayer

      We just moved into Gold Canyon from California and my HOA president CAME TO meet me in the driveway and tells me we can’t park cars in our driveway. Our property. What are the laws pertaining to this issue?Thank you

      1. dennisl

        Brian,
        There are no direct Arizona Laws relative to your specific issue. What you want to do is review your CC&R’s looking specifically for a restriction on parking in your driveway. This actually would be extremely rare. While there may be restrictions for parking commercial vehicles you only mentioned cars. If no restriction specifically exist on your ability to park active registered vehicles on your personal property than the association has no right to add such a restriction in the rules that are not recorded to limit that use of your private property. if that is the case let me know and we’ll go over what you can do from there. There are Arizona statutes forbidding associations from preventing certain utility company employees from parking their direct emergency response company vehicles on their property. That statute is ARS 33-1809.
        Dennis

    3. Rev. Catherine Ohrin-Greipp

      Hi, question still needs a reply. He clearly stated that a vehicle not his was parked in front of his house and he was fined. CCRs aside, if someone not a homeowner parks on a public street in front of your house, how can the honeowner be fined when that homeonwer IS NOT in violation of parking restriction? It happened to me too. But I was not finedl

      1. dennisl

        Catherine,
        You are absolutely right it would be wrong for any association to fine anyone for something that they did not do. Simple common sense and the law would dictate that. But the real issue here is money and common sense is not a requirement for being a community manager and is seldom an actual attribute of community managers. Your HOA board seldom enforces violations of the CC&R’s or rules the management companies do, and as I’ve always said community managers could all be replaced with trained monkeys with no reduction in service and possibly some improvements. Community managers fine people because they can, and the board allows them to do that. Some management companies get a portion of all the fines that they collect as compensation. While Arizona law allows any homeowner to contest any alleged violation directly to the board. Most boards forget that the management company works for them not the other way around and upholds the decisions of the management company and ignore their duty to treat all homeowners fairly and reasonably. The management company has no duty to the community only the board does, unless the board specifically requires that duty in the contract with the management company. I’ve never seen such a provision in any management contract.
        Hold your board accountable for the actions of the management company by removing board members that refuse to follow their duties to the community. Recalls can and should happen far more often. If the board is held accountable for the actions of the management company, and starts firing the management company for stupid stuff like this more often maybe the trained monkeys will change, and life will be much better for all homeowners in this state.

        Dennis

  2. Jack

    My HOA has restrictions for overnight parking on streets–which I support. However, the community is over run with street parking which is a safety hazard. Aside from the occasional email, the HOA is not enforcing these rules despite repeated requests. How can I get the HOA to start fining residents here?

    1. Dennis Legere

      Jack;
      First does your association own the streets or are they city owned? Does your association have CC&R parking restrictions other than overnight parking restrictions? The first question is important because if the association owns the streets they are common property and the association can create rules to protect and manage that property. If the city owns the streets than any association based restriction must be in the CC&R’s and even those will be void if the association amends their CC&R’s for any reason. (based on a law passed in 2016)
      For comment purposes I’ll assume that the streets are common property and the association rules are limited to overnight parking. The first thing I would do is take pictures over several nights of the violators. Get a group of your neighbors that feel the same way about the abuse and attend a board meeting and raise the issue, providing the board the pictures. Inform them of your safety concern especially if the parking could cause safety equipment like fire trucks or ambulances difficulty in navigating thru your community.

        Ask them nicely to address and resolve the problem.

      If they fail to respond file a formal complaint to the board requesting that they enforce their own rules and the CC&R’s or you will be forced to file a petition to the Department of Real Estate to have a judge force them to enforce their rules. Give them a specific time limit to act like 14 day. Again if they fail to act then file the petition to ADRE I’ll help with that if you like but I’ll need to see your CC&R’s and rules. This is cut and dry and the judge will force the association to either change their rules of provisions in their CC&R’s or to enforce them. Failure to comply at this point would result in contempt of court charges and they could go to jail.
      Dennis

  3. Mai

    Dennis, I was visiting and having dinner at my friend’s place. I parked right outside for less than two hours. When I came outside, my car was no longer there and I had thought it was stolen. I had called Mesa police and it turns out that my car had been towed by the HOA. I thought it was illegal to do that? What is the next appropriate step to take?

    1. dennisl

      Mai;
      It depends on who owns the streets. If the streets are owned by the municipality and are public streets than yes if would be illegal for the HOA to have vehicles legally parked on public street to have them towed. If however the streets are not public and owned by the association than they have the right to establish rules and actions relative to parking. The issue is the rules have to be published and communicated to all residents prior to any enforcement action. First ask your friend if the association owns the streets, if they do not notify the city of Mesa of the illegal action of the association. If the association owns the streets and has published rules forbidding parking on the streets after dark or in certain spaces, than your issue is with the HOA and your friend. It is highly unusual for an association to tow a car without warning, but by now nothing surprises me any more about abuses that HOA’s can afflict against their homeowners and quest. State laws has a due process relative to rules violations and what the association must do relative to notice and providing the homeowner an opportunity to contest the alleged violation prior to taking enforcement action and or applying fines. Clearly the association did not comply with that law in this case. Again no real surprise most associations ignore the due process provisions of the law, mostly because they can unless challenged. I’m assuming that you are not a member of the community that towed your vehicle so that you cannot petition the ADRE relative to the violation of the state’s due process law for notice of violations. You could attempt a case in small claims (justice court) against the association for the cost of recovering your vehicle after it was towed, but before you do anything like that I would with your friends help research the rules of the association relative to parking and then speak to an attorney and get their advice on the legitimacy of your claim.
      Dennis

  4. Jose

    So if a new management company took over the hoa after 2016 would that make the parking policy null and void?

    1. dennisl

      Jack,

      First you never established who owned the streets the city or the HOA. The law only applies to HOA’s that have the streets owned by the municipality. Second if you look at the statute and my prior responses you will see that the statute states that if the CC&R’s are revised after December 2014 that only the municipality can restrict use of the streets. This has absolutely nothing to do with the management company and only applies if the CC&R’s were changed and recorded by vote of the members for any reason. If they (the CC&R) have not been changed and they allow the association to place restriction on the streets even if they do not own them then nothing changes, and the law does not kick in.

      So to your question the parking policy is valid irrespective of the management company if the association owns the streets, and remains valid if the municipality owns the streets and the CC&R’s have not been changed since December 2014.

      Dennis

  5. David

    Dennis,

    Does an amendment count as a change to the CC&R’s? My community (Marley Park) states we are not allowed to park an RV/Camper in front of our house. The city (Surprise) owns the streets and there rules state we’re not allowed to park for a period longer than 72 hours more frequently than two times in a month. Is my HOA able to enforce its parking regulations established in 2006 but were amended in 2017?

    1. dennisl

      David,
      Arizona law has a provision relative to this issue. What it says is that any association that modifies it’s declaration (CC&R’s) for any reason after 12/31/2014 can no longer regulate in any way the parking or use of public streets owned by a municipality, irrespective of any provision of the CC&R’s authorizing that regulation and control. I actually get many question on this issue and what people believe is that if the association modifies it’s rules relative to parking that this provision kicks in. It does not, the provision only applies to CC&R changes. It makes absolutely no sense that any association can and does regulate the use of streets that it does not own in any way. As with any legislation, the provision relative to the CC&R change was added based on demands from the HOA industry to water down the intent of this bill. While this was before my time I know the individual responsible for it’s original intent and other individual homeowners that fought to defeat this bill because they wanted HOA control to continue for ever. There are no simple answers to any HOA issue but everything boils down to fundamental property right. I will always lean in the direction of who ever owns the property get to decide how that property is used. When I first started my work both individuals were part of our first year members and I often had to intervene between these two totally opposite perspective to this issue.
      I know this was a long answer to a simple question. All too often people interpret statutes the way that they want them to read and not based on what they actually say. When drafting legislation or reading legislation every word counts and takes on their normal meaning.
      Hopefully this answers your question. If what was changed was your CC&R’s that the association no longer can apply any restrictions what so ever on the use of the streets, but it what was changed was their rules on parking than the Statute does not apply and they retain the authority provided by the CC&R’s two regulate the streets.
      Dennis

  6. Jessica Allan

    My community has no street parking which reviewed my cc&rs. I like some other homeowners own a truck that won’t fit in my garage and is within the required dimensions based on CC&RS. However, my HOA has decided without A member vote to impose towing and fees due to my vehicle being parked in my driveway which is short in length. (What is the required length/depth of a driveway in AZ) It does hang 3 inches over onto the sidewalk. I feel like I and other homeowners are being targeted for owning trucks. It is AZ and I’ve owned a truck most my life.
    Jessica

    1. dennisl

      Jessica,
      If the association own the streets they have a right under your CC&R’s to regulate and control the streets as they see fit. If they do not own the streets but the CC&R’s allow them to control the streets than they can do so as long as they have not modified the CC&R’s since December 2014 for any reason. If they have they lose the ability to regulate the streets. The board alone decides what is done with the common property and no member vote is required in any way. If you don’t like what the board does then you can remove them at the next election or with a recall special meeting.
      Unfortunately the CC&R’s and all the association controlling documents are a contract that were a condition of buying your home in that community. Far too many people do not read the governing document prior to buying their home then find themselves in a situation that they believe is unreasonable and unfair. Your situation appears to fall in that category. The association did not decide to buy a truck that does not fit in your garage or driveway you did. Now you want the association to make an exception to the rules of the community to accommodate your choice. While the association has discretionary power to make that exception they are in no way obligated to do so under the law. Your best option is to organize all the other homeowners in the same situation and respectfully request that the association board apply their enforcement discretion to allow you to park your vehicle in the driveway even though it extend slightly beyond the drive way. Doing this as an individual has little chance of success but trying this with a large group increases the chance of success. Remember to do this respectfully as they have absolutely no obligation to honor your request.

      Dennis

  7. Bryan

    My HOA recorded a CC&R change in 2016 by “Board Resolution”. Does it matter if the recorded CC&R modification is approved by Board Resolution or Homeowner Vote?
    Hopefully the modification means my HOA can no longer regulate parking on our public streets?

    1. dennisl

      Bryan,

      First of all the CC&R’s cannot be changed by board resolution other than to make the CC&R’s consistent with either state or federal law. If they in fact did so they violated the law. They may however change the bylaws of the association if those bylaws allow board modification. Relative to your specific question Arizona Law enacted in December 2014 allowed any association to continue to regulate streets owned by the municipality unless they modified their CC&R’s for any reason. If they do so they no longer can regulate public streets in any way. The key point here is a recorded amendment to the CC&R’s and does not apply to any other modification of the other governing documents articles of incorporation bylaws or rules.

      So if your streets are owners and maintained by the local municipality and they modified and recorded the amendment to the CC&R’s than they can no longer regulate anything about the streets like parking or anything else.

      Dennis

  8. Spencer

    “3.16 Vehicles and Parking. Any and all motor vehicles not prohibited by the provisions hereofshall be stored in a garage so as to conceal the same from view from adjoining Lots or from the street or public way, except that vehicles (other than recreational vehicles, commercial vehicles, motorhomes, campers, trailers, boats and similar vehicles, as provided below) may be parked upon the driveway surfaces ofeach Lot when there are more cars on a Lot thanthenumberofgaragesconstructedthereon. Parkingandlorstoringofrecreationalvehicles, commercial vehicles, motorhomes, campers, trailers, boats and similar vehicles is prohibited on

    all portions of the Property unless such vehicles are not Visible From Neighboring Property or are otherwise pennitted pursuant to the Design Guidelines. Such vehicles may be parked on the parking area of an Owner’s Lot for purposes of loading or unloading, but may only be Visible From Neighboring Property for short periods of time. The use or occupancy of a recreational vehicle, motorhome, van, camper, trailer, or boat as living quarters on either a temporary or pennanent basis is strictly prohibited on any portion ofthe Property. At no time shall there be

    any outside storage of motor vehicles in stages of construction, reconstruction, modification or rebuilding of parts of motor vehicles such as frames, bodies, .engines or other parts or accessories.”

    Above is Sage Creek HOA CC&R about parking. I don’t see anything that specifically limits street parking? How do I find out if the streets are actually owned by the HOA or the municipality? This is my first an last HOA ever, Sage Creek has been horrible.

    Thank you for your time.

    1. dennisl

      Spencer,

      Are you a gated community? if you are the streets must belong to the association. if you are not a gated community your community plat would designate the common property and if the streets are public property or private property belonging to the association. If you do not have access to the plat, and don’t want to ask the association to see a copy of the plat then you can simply call your municipality and ask them if your streets are public or private. Unless you are willing to challenge that provision in court you are stuck with it. Your association bans parking on any street or even private drive way. (Which is simply ridiculous by the way). If the association owns the streets there is nothing in Arizona law that would counter that provision. If however the municipality owns the streets, Arizona law allows the association to continue to regulate the streets after December 2014 as long as the association has not recorded a change in their CC&R’s for any reason. If they have than the association can no-longer regulate public property and streets in any way irrespective of any provision allowing that in the CC&R’s.

      Dennis

      As for your CC&R’s that is one of the most confusing and circular provisions I’ve ever seen in a set of CC&R’s. Basically if you car is visible on your property or on the common property it is a violation. This is a classic example of an anal developer and attorney establishing restrictions that serve no constructive purpose other than to harass homeowners. Under property servitude law such a provision would be classified as arbitrary, spiteful and capricious, and would be deemed invalid.

  9. Spencer

    Dennis, Thank you for your very timely response. We are not a gated community. How would I find out if there have been revisions of the CC&R ? The one on their website is dated December 1999 ? Hard to believe nothing has been changed in that time. I will call the municipality tomorrow but I believe the are public streets. Thank you again for your advise.

    1. dennisl

      Spencer,

      You can simply ask your community manager what is the latest version of the CC&R’s and the latest amendment to that document. If you do not have the latest copy of the basic document or any of the approved and recorded amendment you can ask for a copy of those documents.

      Dennis

  10. Spencer

    Dennis,

    Oddly enough when I called management company and asked what the latest CC&R and amendments were the lady I was talking to first said something about there being an amendment to the “vehicles and parking” regulation dated 2020 but then she quickly said oh never mind that must just be a draft or something!? She then went onto state that there are no amendments to the original CC&R’s dated 1999. Im so fed up with these people. I guess I’m screwed for the time being. Thank you again for your advise.

    Spencer

  11. Tara

    Dennis, I live in a community with an HOA established prior to 2014 with no amendments that I know of. The streets are public. I have parked a car on the street for the last 3 1/2 year and no issues. Now a complaint by a neighbor and I had a notice. Other people park on the street and I don’t believe anyone else has gotten any notices. Is it legal for them to only give me notice because of the complaint or do they have to enforce with everyone?

    Here is the verbiage in the cc&r’s:
    3.16 Vehicles and Parking: Any and all motor vehicles not prohibited by provisions hereof shall be stored in a garage so as to conceal the same from view from adjoining lots or from street or public way, except that vehicles (other than recreational vehicles, commercial vehicles, motorhomes, campers, trailers, boats and similar vehicles, as provided below) may be parked upon the driveway surfaces of each lot when there are more cars on a lot than number of garages constructed thereon. Parking and/or storing of rec vehicles, commercial vehicles, motorhomes, campers, trailers, boats and similar vehicles is prohibited on all portions of the property unless such vehicles are not visible from neighboring property or are otherwise permitted pursuant to the design guidelines. such vehicles may be parked on the parking area of an owners lot for purposes of loading or unloading, but may only be visible from neighboring property for short periods of time. The use or occupancy of a recreational vehicles, motorhome, van, camper, trailer or boat as living quarters on either a temporary or permanent basis is strictly prohibited on any portion of the property. At no time shall there be any outside storage of motor vehicles in stages of construction, reconstruction, modification or rebuilding of parts of motor vehicles such as frames, bodies, engines or other parts or accessories.

    ** So the warning from the management company said :

    Homeowners are required to park in the driveway and garage at all times. Guests may park in an open space on the driveway when available.

    I don’t see anywhere in the CC&R’s where a guest has to park in the driveway and the verbiage above in the cc&r doesn’t say no street parking or no overnight parking just that motor vehicles shall be stored to conceal from view from lots or street or public way and you can park on the driveway if you don’t have enough space in the garage.

    1. dennisl

      Tara,
      While circular your CC&R’s restrict on street parking and under the law unless the association records an amendment to the CC&R’s after December 2014 they are allowed to continue that restriction on public streets in their community. Irrespective of the associations failure to enforce that restriction in the past the restriction and they are allowed to enforce it now. Having said that under Arizona Case Law the association has a duty to treat all homeowners fairly and to use reasonable discretion in the enforcement of covenants and rules. What that means is that if they decide to enforce that rule for you based on a complaint they must enforce that rule across the board with all homeowners. They should have notified the community that despite not enforcing that rule in the past they will be enforcing it in the future as of an effective date. I’m assuming they did not do that. Take pictures of every vehicle in you community that is parked on the street. Officially contest the violation and request a hearing before the board in an open meeting of the board. Call all your friends and neighbors and have them all attend that open meeting of the board. At that meeting acknowledge that you are aware of the parking restriction but you were not aware that the association decided to now enforce it after so many years of never enforcing that issue. If the board had simply notified the community that based on complaints they intend to enforce that restriction for all homeowners and quest as of a certain date you would have made sure that you complied with that regulation from that date forward. But that was not done and clearly enforcement is not being applied equally to all homeowners, based on your photos. Then ask the question what is the policy of the board relative to quest vehicles and service vehicles that are required to park on the streets. How will the board deal with a guest for some other home parking in front of your house without your knowledge or consent? To be able to comply with the duty of the board to treat all homeowners fairly a policy should be developed explaining how all of these issues are going to be addressed before anyone should be noticed of a violation and or fined by the association. See Tierra Rancho HOA v Kitchukov and Turtle Rock III v Fisher.
      Demand that the board rescind the noted violation and first decide if they now want to uniformly and consistently enforse this provision of the CC&R’s and what rules will be applied to guest and service vehicles.

      One more point Arizona Law requires that the notice of contesting the violation be sent via certified mail to the individual identified on the notice of violation. This is just another rediculous requirement the HOA industry piut into statutes to make it harder for homeowners to contest violations.

      Dennis

      1. Tara

        Thanks so much for the quick reply. I guess the big take away is the HOA can interpret the parking restrictions any way they see fit even if not clearly defined in the CC&R’s, but need to send notice to the homeowners clarifying the restrictions and how they intend to enforce the restrictions? Can they enforce on a complaint basis only?

        1. dennisl

          Tara,
          The association has a duty to treat all members fairly. Either the restriction applies to everyone or it applies to no-one. if 10 people violate the restriction but only one person was complained about would you think it was fair for the association to cite the one person with the complaint while not citing the 9 others that did the same thing? This is not rocket science, fair is fair, reasonable discretionary enforcement cannot apply to any situation without mitigating circumstances. The association would have the authority to fine one person for the violation but not fine another person if the board believes that mitigating circumstances warranted applying discretion in the one case relative to enforcement of that restriction.

          Dennis

  12. allyson

    I live in a community where the association owns the streets. We have a parking policy in place that is not and cannot be enforced because we do not have parking decals. Our board voted to have management provide resident and guest decals over a year ago and we still have not received them. In addition, our parking committee was recently disbanded by the board. Our community is overrun on weekends by hikers and bikers and their vehicles are rarely towed. We have people parking in our lined street spaces, calling uber, and going on vacation. Just last week, I counted three vehicles without registration plates that still aren’t towed.(Can I contact Phoenix police directly on those vehicles?) All this in a community that has 1.5 spaces for each home! We are collecting signatures to recall the board president, but it is a small community and we need 100. People are reluctant to get involved because management has “arbitrarily” enforced CC&Rs in the past with board support. Is there a quicker route without the $600 cost of filing a complaint? Thank you

    1. dennisl

      Allyson,
      I understand your concern and clearly your association board has failed to follow up on action to enforce their own policies and parking rules. Get as many people together as possible and attend every board meeting and demand that something is done to manage parking by non residents of the community. This cannot be attempted by one or even a few residents you will simply be labeled as trouble makers and ridiculed in public. That is their job and their responsibility. Because the property belongs to the association only the association has the authority to call the police for parking violations, or to have the illegal parkers vehicles towed. You mentioned that you are a small community and need 100 signatures to call for a recall of the board that would mean that your community has 400 homes. A petition to call for a special meeting of the members to recall the board only requires 25% of the eligible votes in the community. People can either get involved and deal with the issues in their own community or sit back and be quiet. If your community wants things to change they have no choice but to get involved and be part of the solution. There is no-one that will do that for you. Litigation has to be the last option, win or lose the homeowners will pay alot of money to attorneys on either side of the issue and be made the scape goat for assessment increases to pay for those legal fees. The only people that win with HOA litigation are the attorneys. That is why attorneys focus their career on generating strife in these communities. If the association board is not doing their job to maintain the community you need to either inundate their meetings to force them to do their job or generate a recall petition to remove them from office and replace them with people that understand and will take care of their responsibilities to the community.
      The cost for using the ADRE dispute resolution process is $500 but can only be used for violations of either state law or the governing documents. Failure to enforce a parking policy may be a very difficult case to win before an administrative law judge. I don’t know of any case brought before an ALJ where the plaintiff prevailed in such a petition.

      Dennis

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