Can Charlotte HOAs prevent on-street parking?

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.

Originally published in the Charlotte Observer on January 19, 2013.

 

5 thoughts on “Can Charlotte HOAs prevent on-street parking?

  1. I disagree for a public road, not owned by the HOA, in a planned community. N.C.G.S.A. § 136-51 gives the exclusive control of public roads to the DOT. “Town of Emerald Isle v. State”, 320 N.C. 640, 360 S.E.2d 756 (1987). “This Court has previously held that “the control of streets is primarily a State duty, and the legislative control, in the absence of constitutional restriction, is paramount.” HOAs are chartered to have authority over lots and common areas. A road not owned by the HOA is neither of those things. Its up to the DOT and law enforcement to govern parking on the street, not the HOA.

    • You may be right. On the other hand, many CCRs are drafted such that the HOA has the authority to adopt rules/regulations regarding parking, owners’ conduct within the community, and other activities that could affect vehicles or parking. Courts in various other jurisdictions have come down on both sides of this issue. We won’t have a definitive answer in North Carolina until our appellate courts has the opportunity to rule on a case.

      • I think most can regulate how they park in the driveways or parking lots, but a public road that is not a lot or common element and is not in the community by definition in the declarations, is more problematic. I haven’t seen a case in NC square on point, but I’ve had a Superior Court Judge accept my argument.

        Regardless, you are giving out some great information in your columns. I appreciate them.

  2. If a HOA levies a fine, is the HOA standing on firm ground? I am President of our HOA and this has come up. Can we enforce?

    • NC law provides a process by which HOA’s can levy fines against owners for violations of the declaration, bylaws, rules and regulations. However, your ability to do so may be impacted by language in your governing documents.

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