AZHOC - Arizona Homeowners Coalition
Voice for homeowner rights and justice.
azhoatruth@gmail.com
Login

city street parking in an HOA

Our CC&R’s were written on 2006. They recorded an “Amendment to amended and restated declaration of CC&R’s and easements for Fireside at Norterra”…etc. on February 1st, 2016. This was to annex land in the community owned by the state with plans to build a school. Plans were changed and the community got the land and built more houses. Would this “amendment” void the HOA “NO PARKING ON THE STREET OVERNIGHT” rule? (since it was amended after January 2015?) Most of the neighborhood is non-gated, City of Phoenix maintained streets.

1 Response

  1. Dennis Legere

    Mark,
    It sounds like you may still be under declarant control. It is my contention that the way the statute was written a grandfather clause was added but only until such time that either an original or amendment was recorded after 1/1/2015. Most HOA attorneys claim that only original recordings apply to the grandfather clause, but where ever the intent of the legislature was to apply only to associations created after a date they use a totally different expression. It is my belief that any amendment recorded after the prescribed date nullifies the ability of an association to regulate streets that do not belong to them. If you are under declarant control however all bets are off and the association is still allowed to control the streets as long as the declarant control is in place. But as soon as the declarant turn the community over to the association they can no-longer regulate the streets. The thing to remember is that neither the declarant or the association has no authority to set restrictions on the streets that they do not own, unless they have a contract with the city that allows them to regulate the streets instead of the city doing it. The declaration is not that contract because the only parties to that contract are the declarant, the association and the homeowners. The city never committed in any way to be subject to the declaration. You would have to challenge the restrictions in court but from my experience you have a very winnable case. I have never found any city to sign any contract or agreement for any association to manage and control their streets. The basic statute is public policy and any provision in any covenant that violates public policy as unconscionable is void and unenforceable. Any provision in the declaration that applies a restriction on property that they do not own or is not owned by anyone party to the covenants is unconscionable.
    Dennis

Leave a Reply