By Michael S. Hunter
Q: My homeowners’ association (HOA) has a restriction that says we cannot park on the street, but I have heard that they can’t do this because the streets are owned and maintained by the city. Who is right?
A: This is a very common question. The crux of the issue is that, in general, the public has the right to park on public residential streets, but property owners in a planned community are governed by Covenants, Conditions, and Restrictions (CCRs) that may prohibit on-street parking.
Developers often put restrictions that prohibit or limit on-street parking in the CCRs for their communities because a street clogged with parked cars creates an eyesore and a potential hazard. Emergency vehicles may have difficulty getting through, and pedestrians – especially children – walking into the street from behind a parked car could be hit by a car.
Thus, the homeowners in a planned community are subject to state law and applicable local ordinances, but they also must comply with their CCRs. The fact that one rule may be more restrictive than another does not mean that the more restrictive rule is unenforceable.
My answer to this question, therefore, has historically been that anyone who buys a home in a planned community has agreed to be bound by the CCRs, and if a restriction in the CCRs prohibits parking on the street, then the homeowners must abide by this restriction.
The HOA, of course, has remedies available to it for owners who violate the CCRs. Towing is usually not an option unless the CCRs specifically provide for it, but the HOA can levy fines and suspend an owner’s privileges.
If an owner really wants to dispute the HOA’s right to prohibit on-street parking, he can file a lawsuit and ask the court to determine the issue. At this time there is no case law in North Carolina that resolves the conflict between these competing positions.
So until a North Carolina appellate court holds such parking restrictions invalid, the HOA is legally obligated to enforce the CCRs and owners are legally obligated to abide by them. Courts in other states that have addressed this question have answered it both ways. However, I polled several North Carolina HOA and real-estate attorneys on this topic, and all agree with my position on this issue – which may or may not indicate how our courts are likely to rule on the subject.