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Parking CC&R

I have an update to my previous question. I just received an email back from the city of Surprise telling me that the Surprise Farms streets are “public and maintained by the city”. Our HOA has has amended the parking rules at least twice now since 2014. From what I understand, by doing that, parking rules can no longer be enforced by the HOA. Correct? Any advice on how can I pursue this further?

4 Responses

  1. dennisl

    Rob,
    Unfortunately your assumption is incorrect the right to regulate the streets is not based on changes to the rule for street parking but rather any change to the CC&R’s. If a new set of CC&R’s or any change to existing CC&R’s for any reason is recorded after December 31 2014 than the association loses the rights granted in the CC&R’s to regulate the public streets or to regulate parking. The HOA Industry will and has on several occasions argued that the intent of the existing law was to only apply to new associations, but that argument is totally self-serving and based on no actual fact. What the law says is any recorded CC&R after that date abolishes the power of the association to regulate public streets. Any CC&R whether it is an original set or a simple editorial change must be recorded to be effective. If the law intended to apply only to new CC&R’s it would have said “Initial recording” So once again the HOA industry is wrong including the self-serving attorneys. They want homeowners to challenge their interpretation in court even if they are proved wrong because guess what they make a lot of money from that legal action even if they are proven wrong. They is only one party that ever wins in any HOA dispute or legal actions The HOA attorneys.

    Dennis

  2. Kent

    can you give me a case law that defines what is a change? Our HOA rewrote many of our rules/covenants some in material form some editorial form. The excuse was to provide a comprehensive “hand Book” for ease of use. None of these changes have been recorded with the state.
    The handbook clearly show individual notations attached to individual rules of ‘ … revised 2018, amended 2015, etc..’

    1. dennisl

      Kent,
      I know of no specific case law addressing this specific issue but the governing documents for the community consist of three types of documents. The CC&R’s which are the only recorded document, the Articles of incorporation that are approved by the Arizona Corporations Commission. the Bylaws of the corporation and the rules of the association in that order. No lower document can contradict or provide restrictions on the use of the individually owned land that are not specifically established in the CC&R’s or contradict any provision of any higher document. Each document will have provision on how that specific document can be changed. Basically the association is free to establish rules for the use or the common property at any time. For an HOA that common property belongs to the association. But for the association to attempt to create a rule that adds any restriction on the use or enjoyment of private property they would have to process a change to the CC&R’s to do that they cannot do that in bylaws or simple rules. They can however explain how they will enforce CC&R restriction in their rules this is not a new restriction but it can be a official position on how that provision will be interpreted by the association. The law often includes language relative to “Material change” of any provision in the CC&R’s, bur never defines what constitutes a material change because that would be impossible. That is left to the court and the concept of a reasonable person.
      This is a general an answer that i can provide with such a general question without specifics.
      Dennis

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