February 19, 2015 – A mortgage lender foreclosed on a condominium on which the Condominium Owner’s Association had previously recorded a lien a year and a half earlier. In an unusual twist, a third party purchased the condo at the trustee’s sale for more than what was owed on the mortgage, leaving a surplus. Under the Deed of Trust Act (RCW 61.24), any creditor can make a claim on these funds, and the Court then decides who has priority to claim the remaining funds. Attorney Peter Wilburn moved the Court to collect the funds for the Association, prevailing over the objections of the deceased owner’s estate’s attorney and successfully secured $11,258.56 for our Association client.
Our Association Team Attorneys, Greg Cromwell, Jennifer Hill and Peter Wilburn are attending the Annual Community Association Institute Law Seminar January 27ththrough January 31st, 2015, in San Francisco, California. This event features attorneys and professionals from across the nation to share in the collective experience of Association law. It is an important part of our Association attorneys staying on the cutting edge of the latest updates, issues and law pertaining to Homeowners’ and Condominium Associations, to ensure we provide the best legal services for our Association clients.
Understanding how your governing documents treat parking areas will help you to adopt clear rules and policies regarding parking in your community and enforce those rules through fines and even towing. Your Association’s particular parking issues will likely vary greatly based on whether you are a condominium or a homeowners’ association, and your ability to adopt and enforce parking rules will depend on what is or is not already found in your governing documents.
Condominiums. If you live in a condominium, first identify whether your parking areas are common elements, limited common elements, or part of the units. Common element parking is just that – common parking not assigned to any specific owner. Limited common element parking is parking which has been assigned in the Declaration to one specific unit and owner. In some condominiums, especially in townhome-style associations, you may have enclosed parking which is considered part of the unit. Review your Declaration carefully to determine which of these categories applies to the parking in your community and to identify any other provisions that address the use or care of parking spaces. The Declaration may also address parking space swaps between owners and leasing of parking spaces to owners and non-owners. The Declaration should also clearly define the boundaries of parking spaces, which is important for establishing rules regarding cleaning and maintenance of the parking spaces.
Once you’ve determined how parking is defined in your Declaration, you can determine the Board’s authority to regulate parking. If parking areas are considered part of the unit, it is much more difficult for the Board to adopt rules about how those spaces can be used. But if you have common or limited common element parking, the Board has the authority to adopt reasonable rules about those areas in addition to what is in your Declaration. Condominium parking rules frequently deal with what can or cannot be stored in a parking space, whether owners can perform vehicle maintenance in a parking space, and who is responsible for cleaning the parking space. When crafting rules about these topics, it is important to be specific. If your rules state that owners may perform routine vehicle maintenance in parking spaces, provide examples of what is permitted. Closing these kinds of loopholes is essential to successful enforcement action by the Association.
Homeowners’ Associations. In single family housing, parking spaces typically consist of garages, carports or driveways which are part of an owner’s lot. The Board’s ability to regulate these areas through rules is more limited and will depend on what is included in the CC&Rs. It’s common for CC&Rs to address parking of RVs, commercial vehicles, boats and the like, either to allow them for short periods of time or to require that they be screened from view in order to preserve the exterior appearance of the property. The CC&Rs may also address whether an owner is required to use a garage for parking a vehicle or whether it can be converted to “living space” such as an extra bedroom. Your Association should also pay close attention to whether your streets are privately or publicly owned, as this can affect the Association’s ability to prohibit parking on the streets within the community.
Registration of Vehicles. One key challenge in parking enforcement is determining which vehicles in the community belong to which residents. If you do not know who owns the vehicle or which property the vehicle is associated with, how can you possibly enforce the parking rules against them? One solution to this problem is to adopt a rule requiring all owners and residents within the community to register their vehicles with the Association. Some Associations take this one step further and issue parking passes after registration of a vehicle, so that authorized and unauthorized vehicles can be easily identified as such.
Guest Parking. Because of how limited guest spaces usually are, it is important to adopt unambiguous rules concerning who can use these spaces and for how long. The rules should define who is a “resident” versus who is a “guest” – typically this will depend on the duration or frequency of when an individual is staying overnight within the community. Residents can then be required to use the parking spaces allocated to the home where they reside, reserving guest spaces for individuals whose presence at the property is truly temporary.
Fines. If you have not already done so, the Association should adopt a fine schedule as part of your rules and regulations. The schedule may include graduated fines for repeated violations, and you might also consider adopting daily fines for continuing violations – such as an abandoned car left in a guest parking space. In order to assess fines, you must provide written notice of the violation to the owner and give the owner the opportunity to request a hearing and contest the violation before any fines are assessed. As with all rules, the parking rules and fine schedule must be mailed to all of the owners to be effective. Once effective, the rules should be uniformly applied and enforced against all owners and residents of the community. If not, the Association could face claims of selective enforcement or even discrimination, and an owner could successfully challenge any enforcement action or collection action for unpaid fines.
Towing. In order for your Association to use towing as a remedy for parking violations, your Declaration or CC&Rs must give the Board specific authority to remove vehicles from the property when in violation of the governing documents. If you have the authority to tow vehicles, it is imperative to adopt specific procedures which will determine when and how vehicles will be towed from the property. Perhaps your Association will tow vehicles after a certain number of repeated parking violations, or after a certain threshold of parking fines has been reached. In certain situations, towing a vehicle may be more urgent, such as a vehicle parked in a fire lane or in another owner’s space, but the Association should clearly outline these situations to the best of its abilities in a towing policy.
In addition to a policy, the Association should post 15” x 24” signs on the property which clearly state that unauthorized vehicles will be impounded, and the signs must disclose a phone number for the towing company the Association uses so that the owner of the vehicle can retrieve it from impound. If the Association enters into an agreement with a particular towing company, the company may provide these signs at no cost to the Association to make sure they only undertake legal impounds. Either a Board member or the Community Association Manager must provide signed authorization for the tow. Although the law may allow for a vehicle to be towed immediately from private residential property, in most cases the Association should attempt to give at least 24 hours’ notice to the owner of the vehicle by posting a notice on the vehicle that if it is not removed within that time period it will be towed. If possible, the Association should also attempt to give notice to the owner of the lot or unit with which the vehicle is associated. In some cases, this may not be practical, such as if a common driveway or fire lane is blocked, but providing advance notice seems reasonable for less serious violations (expired tabs, parking in guest spaces for extended periods of time, etc.). Towing a vehicle from Association property can have hefty financial consequences for an owner and could even result in an owner’s vehicle being sold at auction. Because of this, the Association should make sure to act reasonably and follow all procedures to the letter when initiating a tow to avoid being held liable in an improper tow action. Even if the Association is successful in defending a tow hearing, it can be very time-consuming and costly for the Association to do so.
Although this article gives a general overview of parking issues and enforcement, your Association should consult its own attorney to determine the remedies your Association already has to address parking problems and what additional provisions you can adopt to assist with enforcement.
JENNIFER R. HILL is an associate attorney at the law firm of Hanis Irvine Prothero, PLLC in Kent, WA. For nearly five years, Jennifer has focused her practice exclusively on community association law, assisting homeowner and condominium associations with their general counsel and assessment collection needs. Jennifer earned her law degree from Northeastern University and her undergraduate degrees from the University of Georgia. Jennifer often speaks at WSCAI educational seminars and management company events. In this issue, she explains the finer points of parking rules and enforcement in community associations.
On October 18, 2014, HIP’s Homeowner’s Association Department participated in the annual Community Associations Institute (CAI) Day at the Washington Convention Center in Seattle. The event is held as a platform for property managers, association board members and homeowners to attend informational classes, speak with service vendors and find solutions for their Association’s needs. Greg Cromwell and his team of attorneys and paralegals were visited at our booth by property managers and association board members, with whom they enjoyed discussing various association questions and issues regarding specific communities. The event was a great success and the HOA Department enjoyed the experience and plans on being annual participants in this event in the future.