Slow Down! In the name of the (HOA) Law!

Elina B. Gilbert | Wednesday, January 30, 2013 | Court Decisions

I have an 11 year old daughter that I will not let play, or even ride her bike, on our street.  Why?   Because I consistently witness maniacs zooming by my house, in their cars, at 100 miles per hour (or so it seems).  Have I complained to my HOA?   Of course I have!  But how does an association enforce speed limits in the community’s private streets?    The police will not typically get involved in such matters because they are “private” in nature and do not involve violations of the law.  So what’s an association to do? 

On January 25, 2013, the Illinois Supreme Court issued an opinion in Poris v. Lake Holiday Property Owners Association, Inc. holding that associations have a right to enforce speed limits on their private streets by using a security guard to pull speeders over and issue citations.  In this particular case, an owner in the Lake Holiday Property Owners Association sued the Association over an incident that occurred on October 20, 2008.  Specifically, Mr. Poris was pulled over by an Association security officer, in a security vehicle, for speeding and was issued a speeding citation.  Mr. Poris filed legal action against the Association claiming the Association acted unlawfully and asking the Court to issue a ruling that the Association’s practices were unlawful because they constituted improper use of police power. The trial court did not agree with Mr. Poris and dismissed the claim.

Mr. Poris appealed the trial court’s decision to the Appellate Court, which overturned the dismissal and held that the practice of stopping and detaining drivers by association retained security guards was unlawful.  The Appellate based its decision on the assumption that security guards are “private citizens” and not police personnel.  Therefore, as private citizens, they could not legally assert police power by pulling vehicles over or issuing citations.  The Association appealed this ruling to the Illinois Supreme Court, which overturned the Appellate Court’s decision.

The reasoning behind the Supreme Court’s opinion was a basic disagreement with the Appellate Court as to whether the above described actions constitute use of “police power”.  The Supreme Court viewed the current scenario as exercise of an association’s private “enforcement rights” and not an exercise of “police power”.   The Supreme Court opined that the Association was authorized to enact rules setting forth speed limits on private streets pursuant to its governing documents, and therefore had a right and obligation to enforce such rules.  Furthermore, the Supreme Court noted that the restrictions applied to private property and were only enforced against members of the Association (i.e. citations were not issued to non-members).  Based on these facts, the Supreme Court concluded the Association acted properly and within the scope of its authority.  The decision also covered several other minor nuances that may be reviewed by downloading the case.  

What does this case mean for Colorado associations?  Should associations now start hiring private security companies to patrol private streets and pull over speeders?  How can Colorado associations take advantage of this Illinois Supreme Court decision to assist them with their speeding struggles? 

Also, it is important to acknowledge that many speeders are not members of the victimized associations and this decision does not assist associations with those types of situations.    Read our article, “Stopping Speeders in the Community,” for additional ideas on how to deal with this problem.

Comments

Rather than attempting to use the questionable application of "police powers" to apprehend speeding residents after the fact, HOAs with private streets certainly can use their unquestionable right to pre-empt ALL speeders using gates, speed bumps and other "traffic calming devices." I imagine that (with the proper notice) the HOA would be within its rights to install speed cameras as well - there are lots of vendors of these systems out there itching to get your business (and a share of the fines!)

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