HB2298 and Affirmative Covenants
I live in an HOA within Phx and we recently had a meeting concerning street parking where a lawyer, working on behalf of the HOA, spoke about how are “affirmative” covenants regarding parking more or less the residents are bound too.
Fact: we are a newer HOA community established in 2019.
Our Covenants have the following language:
Except as otherwise provided herein or by applicable law, all Motor Vehicles owned
or leased by an Owner or Resident and located on the Property must be parked within the garage located upon such Owner’s or Resident’s Lot; provided, however, that if the garage already contains the maximum number of Motor Vehicles for which it was intended to hold, such Motor Vehicles may be parked in the driveway on such Lot, or on the Streets subject to such limitations and rules as the Association may adopt in accordance with applicable law. Except as otherwise provided herein or by applicable law, Motor Vehicles owned by guests of an Owner or Resident may be parked in the driveway on a Lot or on the Streets or in designated parking spaces on the Common Areas if such exist. Notwithstanding the foregoing, and except as otherwise provided by applicable law, no Motor Vehicle owned or leased by an Owner or Resident or their guests may be parked on a Street if space for the parking of the Motor Vehicle is available in any of the following areas: (i) the garage situated on the Lot of the Owner or Resident; (ii) the driveway on the Lot constructed as part of the initial Construction of Improvements on the Lot by Declarant or a Builder; or (li) a driveway expansion.
So the HOA is wanting to cite/fine anyone parking on the street that have failed to use their garage first, then their driveway second (if the garage is filled with cars). However, the street is owned and maintained by the city of Phx.
Does HB2298 protect homeowners from being fined for parking on a public street, regardless of the “affirmative” covenants requiring to park first in their garage, driveway ect.
Or do affirmative covenants over rule state law.
Thank you
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Nikki,
This answer is easy if your association does not own your streets. If the streets are not common property, then no matter what your CC&Rs say, if your association’s CC&Rs were first recorded or have been amended since January 1, 2015, then your association has no authority to regulate street parking in any way, only the municipality that actually owns the streets can do that. Your declarant never had the authority to add any provision in the CC&Rs over property that it gave to a municipality, and the municipality accepted responsibility for the maintenance and regulation of those streets. This law was modified in 2024 to allow any community that was established before the date specified to vote to retain or relinquish authority to regulate street use. Your community was not subject to that vote because you had already been denied the right to do so by the 2014 statute.
Dennis
Hi Dennis,
This is more or less what I imagined to be the answer. My next question is if an HOA does continue to send out notices and monetary violations what is the recourse of the members impacted? What can a member do to get this resolved without having to file a suit?
Nikki,
If your association has sent out violation notices for parking on Municiple streets since 2015 they have violated the law. The first thing that you can do is inform them in a letter that you keep a record of that they are violating the law and have no authority to regulate street parking on streets they do not own. If they continue to do so they will be subject to litigation and breach of duty based on their refusal to comply with direct Arizona Law.
While I’ve little expectation that they will suddenly gain a conscience and decide to comply with the law voluntarily then your easiest recourse is to file a petition with ADRE for force the association to comply with the law. While you do not need an attorney in the hearing before the administrative law judge you bear the burden of proof that the association is directly violating the law so you need to be prepared to satisfy that burden.
Dennis
Thank you Dennis, this will be the process used to proceed. Appreciate your swift replies.
Hey Dennis,
I got one more follow up question. How do commercial work vehicles align with HB2298. For instance if the CCRs state no commercial vehicle should be visible within the community but someone parks a commercial vehicle on the public street, can the HOA enforce it? Or does HB2298 protect against that as well. Thank you!
The bill addresses the regulation of streets, Typical CC&R restrictions relative to commercial vehicles apply to both private driveways and street parking. The CC&R provision relative parking commercial vehicles on your driveway would remain but if the association loses the ability to regulate the streets than the restriction relative to commercial vehicles parking on public roadways would end, as only the municipality could regulate parking on their streets.
Dennis