Enforcement Procedures for Overnight Parking Issues

Post date: Feb 26, 2014 6:27:41 PM

Management and the Forest Creek Board of Directors periodically receive complaints about vehicles parked overnight in the streets within the community. This information is being provided to help residents understand the procedures that must be followed when reporting an overnight parking issue and requesting the association to address it, as enforcement of the overnight parking deed restriction is a bit more complex than may appear on the surface.

There are different types of deed restriction violations within a typical community – those that anyone can see driving by, which are easily verified when a complaint is received from a resident, and those that are not easily verifiable, and therefore require a great more deal of involvement from the person submitting the complaint. If, for example, a homeowner reports a lawn that has not been mowed, the property inspector can drive by and verify that on the next inspection. A car reported to be parked overnight cannot be verified by the inspector, as they do not go out at night, nor can they sit there for 8 hours to serve as a legally valid witness that the vehicle remained in the street overnight without being moved. Thus, similar to any other law infraction matters addressed in a court of law, the burden of this proof falls to the person reporting the violation and requesting the association take corrective measures. Unfortunately, historically most people don’t want to get that involved, which makes this type of rule unenforceable for the HOA.

The DCCR's for Forest Creek do state that "No automobiles or other vehicles may be parked overnight on any roadway within the property." However, this is very difficult for an HOA to enforce without the heavy involvement of a homeowner being affected by it, a homeowner who is willing to provide the association with the information necessary to allow the matter to be pursued, and who would also be willing to testify at a hearing or in court should that become necessary. While routine property inspections are conducted by management twice a month, they are during business hours, which does not allow for overnight parking issues to be addressed; the inspector has no way of knowing if a vehicle seen in the street was parked overnight or not.

What the association needs from an association member in order to address these issues is 1) provide the address of the owner to which the vehicle(s) belong, 2) provide a photograph of the vehicle in question parked in the street (photographs showing it both at night and the following morning would be best to show it was unmoved), 3) provide a written statement (e-mail is satisfactory) that you observed the vehicle(s) in question parked in the street overnight and 4) provide the date(s) on which you witnessed this. Please be certain that the vehicle was, in fact, parked there overnight without being moved at some point during the evening. This is the evidence the Board of Directors needs in order to be authorized to send the owner(s) in question a notice of violation.

Once the notice is sent, the owner(s) must be provided an opportunity to cure the violation, and so we would ask that the complaining witness follow up with an update after 2 weeks. If the problems have been corrected, the violation would be noted as fixed, but if the problems persist, the homeowner would be required to submit another report just as the first, indicating the owners, dates/times, with photos, etc. This process would continue virtually every 2 weeks until the issues are resolved, or until such point as a determination to the contrary is made. For example, the owner would have a right to request a hearing before the Board, and the complaining witness may be called to testify at the hearing as the complaining witness. The Board would use the evidence gathered at that hearing, and throughout the process, to determine if further action is warranted. As legal action costs the association, the Board has the sole right to make that determination. If they do not feel enough evidence exists to pursue further, or if the person charged with the violation provides evidence to the contrary, that could be the end of the road.

While the Board of Directors with their management team has every intent of enforcing the deed restrictions to the fullest extent allowable by the law, we must also adhere to the process and requirements to minimize liability to all members of the association due to unlawful enforcement.

Lastly, the streets within Forest Creek are owned, maintained and governed by the City of Round Rock, which offers homeowners another remedy in some situations. The local law enforcement is not bound by the same policies and procedures as an HOA, and therefore, can often achieve resolution to a problem in a much shorter time frame, and in a much simpler manner. While they may not have laws that state a vehicle can’t be parked in the street overnight, they do have laws prohibiting parking in a manner that blocks ingress/egress or presents a safety hazard (for example, by reducing visibility at intersections), and laws about the direction a vehicle must face, how far away from the curb it must be, etc. If they come out a find a vehicle parked in violation of those laws, they can issue a citation on the spot, providing an instant resolution to the issue.