4.06 Vehicle and Traffic Restrictions

• Library: South Carolina Community Association Law: Condominiums and Homeowners Associations (SCBar) (2019 Ed.)

4.06 Vehicle and Traffic Restrictions

A. Trucks, Junks, and "Commercial" Vehicles

Condominium communities frequently regulate the kinds of vehicles that may be parked on the property. The usually stated purpose for such rules is to prevent "junk" cars or commercial vehicles from being left or stored on the condominium property. Rules forbidding vehicles lacking current license plates, registration, or insurance or that have not been driven on a public street within a prescribed period of time have been upheld.¹⁹⁴ Regulations restricting specific types of vehicles have met with mixed results.

An association in Lake St. Louis Community Ass'n v. Leidy¹⁹⁵ prohibited outdoor storage of trucks, commercial vehicles,¹⁹⁶ boats, house trailers and boat trailers. A unit owner with a recreational vehicle parked outside his residence was found in violation of the restrictive covenant because the association claimed the vehicle was a "truck." Addressing the association's argument that allowing a recreational vehicle on the property defeated the plain purpose of the restriction — to maintain an aesthetic environment — the court found that nothing in the language of the restrictive covenant would notify anyone that it applied to recreational vehicles. Thus the restriction could not be applied to such vehicles.¹⁹⁷

Confronting a similar issue, the court in Bernardo Villas Management Corp. Number Two v. Black¹⁹⁸ reached a different result. In Bernardo the declaration provided:

No truck, camper, trailer, boat of any kind or other form of recreational vehicle shall be parked on the [property], except temporarily and solely for the purpose of loading and unloading, without the prior approval of the Architectural Committee .

An injunction was sought to prohibit a unit owner from parking a pickup in his carport, however, the court found the restriction to be ". unreasonable as applied to clean noncommercial pickup trucks." It was not, decided the court, aesthetically unpleasant to reasonable persons to have such vehicles on the property and they did not interfere with the use and enjoyment of the property by other owners.¹⁹⁹ An almost directly opposite decision was handed down in High Point of Delray West Condominium Ass'n Section 3, Inc. v. Nielson ²⁰⁰ The declaration restriction at issue read:

No trailer, boat, camper, truck, motorcycle, moped, or any commercial vehicle shall be permitted on any portion of the condominium property except for trucks in the process of delivering goods or furnishing services.

An exception to the rule was granted by the developer to a purchaser claiming medical need for a pickup truck. The developer notified the unit owner-controlled association that an exception had been granted, but received no response. Subsequently, however, the association brought an action to enforce the restriction. The trial court found the association was estopped from attempting to enforce the restriction by its failure to respond to the developer's notice, but that the purchaser/defendant failed to prove the medical need. The appellate court found the failure to prove medical need was dispositive of the case. If the developer acted as the association's agent when it granted the exception, then the former bound the latter, decided the appellate court, but only by the terms of the exception, for as long as there was a medical necessity. On the other hand, if the association had a duty to respond to the developer's notice it was estopped from enforcing the restriction as long as there was a medical necessity for the vehicle. As the medical necessity did not exist — if it ever did — the association could enforce the restriction.

B. Assigned Parking²⁰¹

Associations often assign parking spaces. That also may generate controversy.²⁰² The association should carefully document the assignments,²⁰³ especially when some spaces are more desirable than others, for example, they are covered, in a desirable location, or in a garage. A common problem is that an owner leaves on vacation and returns to find his or her assigned space occupied. If the association doesn't have a mechanism for owners to give permission for specific vehicles to occupy their assigned space, it may be difficult to determine who is using the space and to show the absence of permission. If the owner must file permission with the association, then at least it is known whether the vehicle is permitted. When parking spaces are assigned, the association may want to prevent owners from renting — or even selling — the space to non-residents. However, in a New York case,²⁰⁴ an association failed to procure a declaratory judgment that parking spaces were limited common elements and could not be rented or sold to non-residents. The court said the association didn't prove, as a matter of law, that the documents or rules proscribed sale or rental. From the brief opinion it's not easy to determine the basis for the court's opinion. One can expect that a South Carolina court would reach the same decision if an apartment owner owned a space. However, if a parking space is a limited common element, an owner should not be able to sell or lease the space because he or she would not have exclusive ownership.²⁰⁵ The same principles should apply when an association attempts to charge a fee for use of parking spaces. If a parking space is part of a unit, the association should not be able to charge a fee for its use.²⁰⁶ If a parking space is a common element, or a limited common element, then the space is part of the commonly owned property and the association should be able to charge a fee for its use.²⁰⁷

A council of co-owners may have to provide accessible parking to residents with disabilities.²⁰⁸ It may also have to take action to ensure that a handicapped resident requiring handicap parking where none is available, or some other reasonable accommodation, is in fact accommodated.²⁰⁹

C. Towing

When an impermissible vehicle is parked on the property or a vehicle is parked in a space to which it is not assigned, the immediate solution employed by many associations is to have the vehicle towed from the property. Does a council of co-owners have the authority to have vehicles towed from the property? In a New Hampshire case the Supreme Court of that state found that an association was not authorized to tow vehicles.²¹⁰ It based its decision on two factors: (1) the parking restriction at issue included a penalty — loss of permission to use parking spaces — that could reasonably be interpreted as a limit on the sanction that could be imposed for a parking violation; and, (2) the bylaws provided the power to levy fines not to exceed $10 for a single violation, but the cost to a unit owner whose vehicles were towed substantially exceed the limit on fines. While the court concluded implementation of a towing penalty was not authorized, the decision implies that towing could have been authorized by the documents. Thus, it would be wise for the bylaws — or maybe even the master deed — to authorize the council of co-owners to have improperly parked vehicles towed from the property. Under South Carolina law no one may park a vehicle on another's private property without the owner's consent.²¹¹ If the property is for commercial use,²¹² a notice prohibiting parking must be posted in a conspicuous place on the border of the property and near each entrance.²¹³ Vehicles parked on private property may be towed and stored at the owner's expense.²¹⁴ The council may also have to comply with local regulations on towing.²¹⁵

D. Public/Private Roads

By statute, the Uniform Act Regulating Traffic (UART),²¹⁶ can be made applicable to private roads.²¹⁷ For that to happen, the owner — including any corporation or homeowners association that holds title to community roads, but excluding those holding easements over those roads²¹⁸ — must file a written consent that affirms the ownership of private roads...