It is no secret that parking enforcement is a sensitive issue for homeowner's associations and their boards; and, few issues can compete for the title of most aggravating amongst association members. An association's most potent remedy towing can lead to frustration, anger and lawsuits. Take, for example, last year's case where a jury awarded $108,000 to a woman who was assaulted by a tow truck operator after the operator attempted to tow a vehicle from the complex and the two got into a nasty fight.1 That was obviously an extreme case, and fortunately parking enforcement and towing do not usually result in an assault. There can, however, be disagreement over what restrictions should be implemented, how they should be enforced, and whether the association has the authority to enforce them.
Most homeowner's associations have CC&Rs and rules which restrict where its members may park, what types of vehicles are permitted to be parked within the development and for how long. Rules generally differ depending on whether it is a condominium project or single-family planned development,2 whether the area is urban or rural, and whether parking is abundant or in demand. Although associations typically have the authority to regulate the private streets within its development, one particularly thorny issue is how and whether an association can enforce parking restrictions on public streets located within the geographic boundaries of a common interest development (CID).
Some developments consist of private streets which are not open for use by the public and are owned or maintained by the association. Generally, under state law and the governing documents, the association may regulate parking as to both members and non-members in these developments. Typical regulations might restrict the number of allowable vehicles; prohibit or limit commercial or recreational vehicles; and require that vehicles be parked in garages. The association will generally have the authority to enforce those parking restrictions by levying fines, suspending member rights, and by towing.
Although an association may have authority to enforce parking rules on its private streets, its authority to adopt and enforce internal parking restrictions applicable to public streets within the development is less clear. Public streets, which are those publicly maintained and open for use by the public, are generally the responsible of the government; and, an association may not interfere with that regulation, except to the extent authorized by law.
Currently, no California statute expressly authorizes (or prohibits) an association from regulating parking on public streets located within the development's geographic boundaries; but, an association has the power to enforce its recorded CC&Rs.3 Owners, by purchasing property subject to such CC&Rs, relinquish certain individual property rights they might otherwise have and accept the risk that an association's discretionary power to enforce restrictions or create new ones may be used in a way that harms the individual owner but benefits the development as a whole.4 Further, associations have a compelling interest in preserving property values through enforcement of the governing documents. How terms are defined in those documents may make a difference in providing an association the authority to regulate the public streets; however, an absence of language specifically granting an association authority over the public streets should not be construed to mean that no authority exists. The governing documents must be considered as a whole and consideration given to the intent of the drafters of the documents.
In addition to the absence of a statute authorizing such regulation, no published California case directly addresses the issue either. At least two out-of-state cases, however, have addressed the issue of a homeowner's association regulating the public streets in its development.5 Both of those cases dealt with the prohibition on parking of commercial vehicles in the development, and the courts concluded that the associations had the power to control its members' use of the public streets within the development. Although these cases do not have precedent in California courts, they perhaps lend some guidance on how a court here might rule. But, because the law in this area is not settled, there is a risk that such enforcement may later be found invalid and the rules unenforceable.
As with any use restriction, the real challenge is in enforcement. To make parking enforcement less challenging, the association should adopt fair and reasonable parking restrictions that are consistent with its governing documents, ensure that the members are aware of the restrictions and apply and enforce those restrictions in a fair and reasonable manner. Where applicable and authorized, an association can tow the unauthorized vehicle; however, towing requires compliance with Vehicle Code section 22658, which provides detailed procedures that must be followed when towing from private property. In most cases, an association must do the following three things in order for tows to be procedurally proper under section 22658: (1) provide vehicle owners with prior notice of their inability to park on the property; (2) provide proper written authorization for the tow; and (3) comply with the statutory reporting requirements.
Notice: the notice requirement can be met either by posting signs at all entrances to the development or by issuing a parking violation notice at least 96 hours before towing the vehicle. The statute provides specific size and content requirements for the signs which must be met where that form of notice is used by the association.
Authorization: valid authorization for the tow can be achieved by a general towing authorization or by a specific towing authorization. A specific authorization is a specific request by the association to remove an unauthorized vehicle from the development. It further verifies to the towing operator that the person requesting the tow has the authority to have the particular vehicle removed. On the other hand, a general authorization permits a towing operator to monitor the development and tow vehicles without having to obtain a specific authorization from the association; however, the circumstances under which the tow operator may remove a vehicle under a general authorization are extremely limited, and most tows will occur under a specific authorization.
Reporting: certain reporting requirements to the owner and to the local traffic law enforcement agency are also required. The association must notify the local traffic law enforcement agency by telephone within one hour after authorizing the tow. The association must further notify the vehicle owner of the basis for the tow, but is only required to do so upon the vehicle owner's request.
The towing statute includes many other details that could not be covered in this article including many requirements which apply only to the towing companies e.g., how to handle tows interrupted by vehicle owners, permitted towing charges, proper money handling, requirements for vehicle storage facilities, and standards for releasing vehicle to their owners.
Associations have the authority to regulate parking on private roads within the development, where authorized to do so in the governing documents. An association may also have the authority to regulate parking where the streets are public in nature. In either case, a review of the governing documents is necessary in making such a determination, and, in the latter, the decision may ultimately lay with the California courts. The association has available to it the important and powerful remedy to tow unauthorized vehicles from the development. The towing statutes are procedurally complex, but not insurmountable if the association takes the time to understand and follow the statutory requirements, create reasonable and clear internal policies, and apply those policies in a fair and consistent manner.
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