Drafting and Enforcing Parking Restrictions
By: Elina B. Gilbert, Esq.
Despite the going green initiatives and increased use of public transit, ownership and use of automobiles remains a necessity for most. Our need for automobiles translates to parking problems in many communities with limited parking availability. To help alleviate their parking problems, many of these communities have adopted parking restrictions and regulations.
Despite the existence of such restrictions, it is not unusual for owners and their guests to violate these rules in any number of ways, including parking in areas where parking is not permitted,such as streets, fire lanes, or reserved parking spaces that belong to other owners; leaving their vehicles overnight in spaces that are not intended to facilitate overnight parking; or parking or storing vehicles such as motor homes, trailers, and abandoned or inoperable vehicles when specifically prohibited.
Below are some tools your community can utilize to help with the drafting and enforcement of its parking regulations.
Clearly State the Rules
The first step to successful enforcement of parking restrictions is to ensure the residents are aware of what is and is not allowed with respect to parking in the community. This means the parking restrictions are written in a manner that owners can understand using clear and unambiguous language. Doing so, will help prevent violations as a result of residents’ misunderstanding of what the regulations are actually trying to prohibit.
For example, if your covenants prohibit certain types of vehicles from being parked in the community, such as recreational or commercial vehicles, don’t assume all your residents have the same definition for these terms as you do. To some, a Mary Kay pink Cadillac may be a commercial vehicle, but to others it is not. To some, a pick-up truck with ladders and tool boxes may be nothing more than a pick-up truck, while to others it is clearly a commercial vehicle.
To avoid the above confusion and misinterpretation of the restrictions, clearly define what these terms in your parking regulations. The definitions must be objective and unambiguous from which a lay person can clearly determine which types of vehicles are permitted and which are not.
To further illustrate this point, consider the following examples:
Example No. 1: No commercial vehicles, trucks, vans, or trailers may be parked within the community for a period exceeding eight (8) hours.
Example No. 2: The following types of vehicles are prohibited in any portion of the community, except as a temporary expedience for loading or unloading, for a period not to exceed eight (8) consecutive hours: commercial vehicles (carrying a sign advertising a business or having commercial license plates); trucks, vans and vehicles having capacity of over one ton; trailers of any kind; and vehicles with more than four single-tired wheels. Construction equipment used in the actual repair, construction or maintenance of the property will not be restricted during its use.
Upon reading and comparing the two examples, it is easy to see how the first example leaves a lot of room for misrepresentation as to what is prohibited, and how a resident could misinterpret the rule. Conversely, the second example is much more detailed and leaves less room for interpretation.
Additionally, drafting clear and concise parking restrictions benefits associations with their covenant enforcement litigation. When rules are drafted in a vague and unclear manner, a court must interpret the rule to determine if there was a violation. Most courts choose to interpret rules in a manor favoring homeowners and not associations. Accordingly, if a rule is drafted clearly and not open to interpretation, a court will not have the option of misinterpreting the true meaning of that restriction and ruling in favor of the association.
Communicate the Rules
Even the most clearly drafted rules will not be followed if residents are not made aware of them. Therefore, it is imperative that parking restrictions be effectively communicated to all residents within the community. Effective communication of the rules may include posting the rules on the community website and directing owners to the rules through a newsletter article or other mailing. It is also feasible to distribute the restrictions to all new purchasers within the community and mailing copies of the restrictions to the residents.
This notwithstanding, it may also be necessary to place signs in parking areas indicating where parking is “reserved” or for “residents only” or is “guest parking”.
If your governing documents allow for removal of vehicles (i.e. towing), make sure you have towing signs posted in appropriate locations and have consulted with the association’s legal counsel to ensure the association has a right to tow vehicles and that there aren’t any additional specific requirements set forth in the covenants or at law.
For those communities that prefer not to tow, or are not authorized to tow, booting may be another option. When a vehicle is booted, a device is locked onto one of the wheels that prevents the vehicle from being driven. As a result, the vehicle owner cannot move the vehicle until he/she pays a fee to have the boot removed. Again, however, if you plan on using this method to enforce the parking restrictions, make sure to consult with the community’s legal counsel first to ensure all legal requirements are being followed.
Follow Your Enforcement Policy
Even if you have clearly drafted parking restrictions and you effectively communicate such restrictions to your owners and residents, violations will inevitably occur. Make sure you utilize the community’s enforcement policy (which is one of the nine required policies under state law) when it comes to these parking violations.
Following your enforcement policy for every parking violation will allow the association to enforce its parking restrictions in a consistent and uniform manner and will protect the association from claims of discrimination or otherwise singling people out and treating them differently than others.
If you have any additional questions concerning drafting or enforcing your parking restrictions, please contact a HindmanSanchez attorney at 303.432.9999.