By Deborah Goonan, Independent American Communities
A buyer should always read and review the Covenants, Conditions, & Restrictions, (CC&Rs), plus additional rules and regulations, before closing on the sale of a home in an HOA-governed community.
If you don’t think you can live with the CC&Rs and written standards, then you’re better off walking away from a sale agreement.
But what if you can see that the HOA does not enforce certain rules? And what if you talk to residents before agreeing to buy, and they tell you that the HOA hasn’t enforced certain rules in years?
You may think that it’s OK to buy into a community with an HOA that’s lax on enforcement of a rule that you don’t like.
But a recent report about Ocoee’s Wesmere subdivision might make you think twice about ignoring the governing documents, and hoping that the HOA will never start cracking down on homeowners for violating its restrictions and rules.
Zombie Rule rises from the dead
Wesmere Maintenance Association (WSA) recently resurrected a Zombie Rule 30 years after it had gone dormant: a restriction against parking vehicles on the street. That means all residents must park their vehicles in their garage or in their own driveway.
Theoretically, a home with a 2-car garage will have parking space for 4 vehicles — 2 in the garage, plus 2 in the driveway.
But, as we all know, in the real world, a lot of people use the garage for storage. That usually eliminates one or both garage parking spots. If more than two residents of a home are drivers, they will inevitably park additional cars on the street.
And in Wesmere, that was common practice for decades. Some residents have owned their homes in the community for decades, during which time the HOA didn’t enforce a street parking ban.
That is, until a new HOA board took over in 2017.
Now the HOA tickets and tows vehicles parked on the street.
Parking restrictions a growing problem
Wesmere HOA isn’t alone. Across the U.S., I’m reading a lot of reports of other HOAs enforcing a ban on street parking.
In 2017, Rosedale Place HOA, in Bossier City, Louisiana, asked the city to enforce its street parking ban. Ant the City of Greenwood, Indiana, denied a similar request from the Tuscany Village HOA in 2018.
Following a dispute over aggressive towing, owners in Kings Lake, Hillsborough County, Florida, filed a class action lawsuit against their HOA.
These are just a few examples. The root of the problem is that many common interest developments emphasized maximizing the number of homes or condos in the community, sacrificing adequate space for parking.
Unfortunately, homeowners and residents are left to deal with the consequences of poor planning decisions.
Pros and cons of a street parking ban
Some homeowners are happy about renewed enforcement of parking restrictions. Without cars parked along the curb, the narrow streets in the gated community are less crowded and easier to navigate.
And some homeowners are pleased that more “unsightly” parked vehicles are “hidden” in a garage.
But the new push for parking enforcement puts many families with 3 or more drivers in a bind. Where will they now park their extra vehicles? Or, alternatively, where will they store all the stuff they have to take out of their garage, to make room for two cars?
Plus, parking two cars in the driveway creates an inconvenient game of “musical cars” every time a driver needs to back out of the garage.
But, even if the residents have enough space to park their own vehicles, there won’t be enough space left in the driveway for guest vehicles.
You might say that a street parking ban is a de facto ban on inviting guests to your home.
Should your HOA have that kind of authority over your social life?
Frustrated homeowners respond
Needless to say, a lot of homeowners are not happy with the HOA board’s renewed enforcement of parking restrictions.
According to a report from WKMG, one group of homeowners gathered 315 signatures on a petition to do away with the street parking ban. WMA has 565 homes, and 315 is a majority (about 56%) of the total membership. But the HOA board reportedly won’t accept the petition as an official mandate to change the rules and restrictions.
That’s why two residents have filed separate lawsuits in Orange County Civil Court against the Wesmere Maintenance Association. They’re hoping to get a judge to issue an injunction against enforcing the parking ban, until the matter is resolved through the legal process.
Can the HOA do that?
You might wonder why the HOA didn’t overturn the street parking ban in response to a petition of homeowners. Can they get away with ignoring a majority of homeowners?
Maybe. Maybe not.
It depends on a number of factors, including the governing documents.
However, WMA does not make its governing documents publicly accessible on its website. So I was unable to read the CC&Rs and the rules.
Therefore, it’s unclear if the parking ban is written into the CC&Rs, or whether it’s an HOA-board enacted rule.
Amendments to CC&Rs generally require at least two-thirds of all HOA members vote in favor of changing a restriction. Some CC&Rs require a higher percentage. Either way, an amendment to the CC&Rs would require more than a simple majority of all members.
Rules and regulations, on the other hand, are often easier to challenge and overturn, with a lower threshold that doesn’t require as many votes from homeowners.
But what about the HOA-industry trade group’s claims that, “if the HOA doesn’t enforce a rule consistently, they lose the right to enforce the rule at all?” If that’s true, it would seem that WMA has lost its legal right to ticket and tow vehicles parked on its streets.
So the answer to this question is about as clear as mud.
A judge will have to decide whether or not the HOA can still enforce a street parking ban that has not been enforced for 30 years.
Regardless of the outcome, it looks like a lot of homeowners are going to be unhappy. ♦
Wesmere subdivision homeowners sue HOA over street parking
Residents say HOA didn’t previously enforce street parking bylaws
By Nadeen Yanes – Reporter
Posted: 6:23 PM, May 09, 2019Updated: 8:41 AM, May 10, 2019