Chapter 10 - § 10.7 • VEHICLE AND TRAFFIC RESTRICTIONS

• Jurisdiction: Colorado

§ 10.7 • VEHICLE AND TRAFFIC RESTRICTIONS

Common interest communities usually have at least some regulations on the kinds of vehicles that may be parked on the property and where and how they may be parked. These rules have various purposes: to prevent "junk" cars from being left or stored on the property, to maintain residential character by restricting commercial vehicles, and to fairly distribute available parking (especially when some parking places are significantly more desirable than others).

§ 10.7.1—Emergency Vehicles

Before considering the various types of parking regulations that associations attempt to enforce, and their success in so doing, it is important to note that under the CCIOA, the association is severely restricted in its ability to regulate "emergency vehicles," many of which are considered trucks or commercial vehicles that would otherwise be restricted or prohibited. By statute, associations may not, despite any provision in a declaration, bylaws, or association rules and regulations to the contrary, prohibit parking of a motor vehicle by the occupant of a unit on a street, driveway, or guest parking area in the community if the vehicle is required to be available at designated periods at the occupant's residence as a condition of his or her employment.³⁴⁸ For the statutory proscription to apply, four criteria must be met: (1) the vehicle must have a gross vehicle weight rating of 10,000 pounds or less; (2) the occupant must be a bona fide member of a volunteer fire department or employed by a primary provider of emergency fire fighting, law enforcement, ambulance, or emergency medical services; (3) the vehicle must bear an official emblem or other visible designation of the emergency service provider; and (4) the vehicle must be parked without obstructing emergency access or interfering with the reasonable needs of other owners or occupants to use streets, driveways, or guest parking spaces within the community.³⁴⁹

§ 10.7.2—Restricted Vehicles

While courts have upheld rules that prohibit vehicles without current license plates, registration, or insurance or that have not been driven on a public street within a prescribed period of time from being kept on common property,³⁵⁰ restrictions on particular kinds of vehicles have met with mixed results.

One vehicle restriction that has historically been rather common is a prohibition on pickup trucks. Many of these restrictions date back to the 1970s and 80s when pickups were viewed by some as commercial "work vehicles" that were inappropriate in middle-class residential communities. Since then, of course, they have come to be used as primary vehicles and to be seen as little different from SUVs or even traditional passenger automobiles. That viewpoint is reflected in a California appellate opinion discussing a declaration that 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 purposes of loading and unloading, without the prior approval of the Architectural Committee . . . .³⁵¹

The association did not want a unit owner to park a pickup truck in his carport and sought an injunction to enforce the declaration. The appellate court, however, said the restriction was "unreasonable as applied to clean noncommercial pickup trucks,"³⁵² which were not aesthetically unpleasant to reasonable persons and would not interfere with use and enjoyment of the property by others.

Other courts have taken a different view,³⁵³ including a Florida appellate court that considered a declaration restriction that 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.³⁵⁴

The developer granted a unit purchaser an exception to the declaration restriction ostensibly on grounds of a "medical need" for a pickup truck, and notified the unit owner-controlled association of the exception. Initially, the association did not respond, but later it brought an action to enforce the restriction. A lower court decided the association was estopped from enforcing the restriction because it had failed to respond to the developer's notice, but also that the purchaser/defendant failed to prove any medical need. On appeal, the failure to prove medical need was considered to be dispositive. The appellate court decided that if the developer acted as the association's agent in granting the exception, then the association was bound, but only by the terms of the exception and for as long as there was a medical necessity. If the association had a duty to respond to the developer's notice, it would indeed be estopped from enforcing the restriction, but again, only for as long as there was a medical necessity for the pickup. Because no medical necessity existed, the association could enforce the restriction.

The declaration in the Florida case contained language commonly found in residential common interest community documents prohibiting the presence of commercial vehicles except when their drivers are on the premises to make deliveries or provide services. Sometimes the restrictions prohibit commercial vehicles from parking on the property overnight. Many of these documents, however, fail to define "commercial vehicle." A New Jersey court confronted that problem and decided a vehicle was commercial because it had commercial license plates, it carried equipment, and, it had a sign on the side identifying the business.³⁵⁵ The Colorado Uniform Motor Vehicle Law³⁵⁶ defines "commercial vehicle" as one "used to transport cargo or passengers for profit, hire, or otherwise to further the purposes of a business or commercial enterprise."³⁵⁷

Recreational vehicles are also commonly restricted by common interest community documents or rules. In a Missouri case,³⁵⁸ outdoor storage of trucks, commercial vehicles,³⁵⁹ boats, house trailers, and boat trailers was prohibited. A unit owner who parked his recreational vehicle outside his residence was charged with violating the restriction because, argued the association, the vehicle was a "truck." The court rejected the association's contention that permitting recreational vehicles would defeated the plain purpose of the restriction, to maintain an "aesthetic environment." Nothing in the wording of the restrictive covenant, said the court, notified anyone that it applied to recreational vehicles and, therefore, it could not be applied to those vehicles.

§ 10.7.3—Assigned Parking³⁶⁰

Many common interest communities assign the use of parking spaces. This is especially true in urban areas or in other situations where the availability of parking is limited.³⁶¹ It is also the case when some spaces are more desirable than others because either they are covered — for example, in a parking garage — or are located in closer proximity to entrances.³⁶² Also, in some cases, usually in townhome developments or subdivisions of single-family detached homes, designated parking spaces may be immediately adjacent to the unit. Assignment of spaces may happen in any number of ways.³⁶³ The declaration may, for example, specifically assign spaces to specific units, or it may guarantee one or more spaces to each unit,³⁶⁴ with specific assignments to made by the governing board. A parking space could actually be part of a unit, or might be designated as a limited common element or be a general common element encumbered by an easement. An owner may hold a space under a lease or a license. If an owner receives a license rather than an easement or a lease for a term of years, it is possible that the license can be revoked at any time.³⁶⁵ In some communities, the documents may say nothing about assigned parking, but the association later decides it needs to assign spaces and does so by rule. No matter how the assignment of spaces is handled, it may well generate great controversy. Questions arise about the fairness of assignments and over whether spaces can be sold, leased, or traded.

In a Virginia case,³⁶⁶ a homeowners association assigned parking spaces in the common area to particular units. Previously, all spaces were available to all owners: whoever got there first got a space. When the association's action was challenged, it contended the assignment was merely a rule or regulation that governed the common areas. The court, however, viewed the assignment as a licensing of part of the common areas. Under the declaration, that could only be done on a "uniform, non-preferential basis." Because the assignment was clearly preferential, the court affirmed the holding of the lower court that the assignment was "invalid and unenforceable" and an ultra vires act that violated the declaration.

The same result would not be reached under the CCIOA if Colorado courts were to follow a comment to the Uniform Act. The comment says that an association may assign reserved parking spaces to designated unit owners — or even non-owners — and those spaces would be different from limited common elements because their use would be merely a personal right of the persons to whom they were assigned.³⁶⁷ The comment finds the authority to impose parking restrictions on common elements in provisions of the Uniform Act setting out association powers, which happen to be virtually identical to those in the comparable CCIOA statute.³⁶⁸ On the other hand, both the CCIOA and the Uniform Act (1) define a "limited common element" to mean a portion of the common elements that is allocated for the exclusive use of one or more units, but fewer than all of them;³⁶⁹ (2) require the declaration to describe any limited common elements;³⁷⁰ and (3) prohibit the declaration's allocation of limited common elements from being changed without the consent of the unit owners whose units are affected.³⁷¹ Given that language, it would seem that a...