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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?

15 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. 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

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