By Trisha K. Harris, White Bear Ankele Tanaka & Waldron
You live in a community with three car garages and ample driveway parking space, but your neighbor insists on filling his garage with junk and parking all of his cars on the street, some in front of your house. It may be annoying and an inconvenience to you, and maybe even an eyesore, but is it a covenant violation that your association can become involved with?
It’s an age-old question that we get asked frequently in the course of our work with associations. Can an association enforce parking restrictions contained in the declaration on streets that have been dedicated to the city or the county? Unfortunately, the answer is not clear cut, courts across the country have decided the issue in differing ways. Generally, however, the following is a summary of the analysis typically followed in analyzing this question.
- Are the streets part of the “community?” Review your declaration to determine what property is subject to it. If just the lots are subject to the declaration, there is a relatively good argument that the association cannot enforce the parking restrictions in the declaration on the public streets as the streets are not subject to the declaration, and therefore, not within the purview of the association’s enforcement authority.
- If the streets are part of the “community,” when were they dedicated to the city or county? If the streets were dedicated to the city or county (typically via a dedication on the plat) after the recordation of the declaration, the argument is that the city or county took title to the streets subject to the declaration, and, therefore, the association may enforce the restrictions contained in the declaration on the streets. On the other hand, if streets were dedicated to the city or county (i.e., the plat was recorded) before the recordation of the declaration, the argument that courts have agreed to is that, because the city or county did not take the streets subject to the declaration, the association cannot enforce.
- Do the parking restrictions in the declaration specifically reference parking on the streets? For example, does your declaration state that recreational vehicles shall not be parked on the streets? If so, another theory on which courts have ruled in favor of associations’ authority to enforce is a contract theory. Under this theory, regardless of when the streets were dedicated, whether they are part of the “community,” or otherwise, the declaration is viewed as a contract between the association and the owners. Any violation of the covenants is considered a breach of contract enforceable by the association on its own merits.
- Does the city or county to which the streets have been dedicated have any ordinances or regulations regarding enforcement on its streets? Check your city’s or county’s ordinances to ensure that there are no restrictions against enforcement. For example, the Town of Parker has an ordinance that prohibits associations from enforcing parking restrictions on the Town of Parker’s public streets if such restrictions were put in place after the date of the ordinance. If that is the case, then enforcement must be left up to the applicable city or county.
As the above discussion illustrates, enforcement of private parking restrictions on public streets is a complicated issue and one that no association should undertake without first consulting with legal counsel to discuss the above analysis, risks, liability exposure, etc.
White Bear Ankele Tanaka & Waldron was formed in 1997 to serve the needs of residential, commercial and mixed use projects throughout the State of Colorado, and in particular to provide advice and counsel to project developers, property owners and residents on a wide range of issues. The firm has an experienced team of professionals dedicated to meeting the needs of the its clients in a timely and cost-effective manner.
