Overnight Parking Restrictive Covenant: Frequently Asked Questions

 Photo: Under  license  from  DDOT DC  via flickr

Photo: Under license from DDOT DC via flickr

To assist residents of the neighborhood in understanding and complying with the Canyon Creek overnight street parking restriction, the Directors have prepared this FAQ.

Where did this restriction come from? Is this a new restriction?

This is NOT a new rulemaking. The restriction on overnight street parking is one of the Restrictive Covenants found in the 2nd Restatement of Canyon Creek Master Declaration of Covenants, Conditions and Restrictions (the “Declaration”) in Section 3.15. The Declaration is one of the Association's governing documents dating back to the initial development of Canyon Creek.

Why do we have this restriction?

During the day it's expected that people are using their vehicles for work, school, running errands, etc. and they are not parked within the subdivision. In the evenings, people return home and we want the vehicles kept off the streets for aesthetics and to allow other vehicles, including emergency vehicles to be able to move easily through the subdivision.

Why was this not enforced in the past?

It was, in fact, enforced and residents routinely received notices of non-compliance with a request to comply. The Association used a security contractor to drive the neighborhood regularly and note license plate numbers. If a vehicle was registered to an Owner in Canyon Creek then a violation notice would be sent. Until 2014, the Association had no Fine Policy and other methods of enforcement were not preferred so there really was no consequence for non-compliance; nevertheless, the vast majority of Members complied voluntarily. A little over a year ago, the Association Directors received information that due to the public nature of the roadways in the subdivision, the restriction could be unenforceable. Not long after this issue was raised, the board and the management company agreed to end assessment of fines and revert to voluntary requests to comply as was done previously.

Why is the restriction being enforced now?

The Board, acting on behalf of the Association, asked an accomplished local attorney from a multi-state firm specializing in homeowner association law to review our governing documents and provide an informed legal opinion as to the enforceability of the restriction. His research yielded the opinion that the restriction is enforceable.

How does the Association have the authority to restrict parking on the public city streets?

A detailed explanation of the interaction of property ownership, Association membership, Declarations and Restrictive Covenants is well beyond the scope of this FAQ, but briefly, Restrictive Covenants are the legal obligations that require the homeowner to do something (such as pay annual dues or keep your lawn mowed) or to refrain from doing something (such as make loud noises that disturb your neighbors or park a boat in your driveway). Restrictive Covenants are attached to a property and each subsequent owner of such property becomes obligated to comply with them upon acquiring ownership.

Once you purchase property in Canyon Creek you obligate yourself to comply with the Restrictive Covenants attached to the property. In effect, you give up the unrestricted right to do certain things, one of which is park your vehicle on the public streets within the subdivision. This is no different than any other type of civil contract that you voluntarily enter into, for example, if you've purchased a car or signed up for cell phone service, you likely agreed to binding arbitration as a condition of sale and gave up the right to sue in the courts in the event of a dispute with your dealer or cell service provider. The Association is NOT asserting it owns or controls the public streets; rather, it’s restricting the permitted activity of its Members within the subdivision under the Restrictive Covenants. This is a subtle distinction but is critical to understand.

Does this mean the general public has more right to use the streets than Association members?

Essentially, yes. Unlike Canyon Creek Lot owners, members of the general public are not bound by the restrictive covenants.

What does "overnight" mean?

The opinion from our attorney provides a legal definition found in Texas law that defines overnight as "between the hours of 10pm to 6am". This is the definition the Association will use. We are taking the plain meaning of overnight in the same way one would when saying, "I have overnight guests," or "I'm taking an overnight flight,” or "I'm staying overnight in a hotel." Late dinner parties, poker nights, early visits by the nannie, quickly dropping by a neighbor’s house, etc. will not be in violation of the parking restriction as those aren't understood to be "overnight" activities when using the plain and ordinary meaning. This is actually a less restrictive interpretation than was used in prior years where any vehicle on the street at any time during the overnight hours could technically be cited for non-compliance.

How will the HOA enforce the rule?

Complaints of non-compliance with any of the Restrictive Covenants come from two primary sources - residents themselves and agents of the Association (board members, ARC members, Goodwin management). The Association has decided not to re-hire the security contractor and instead rely solely on resident initiated complaints. The security contractor approach used previously was found to be problematic in that his view was an instantaneous snapshot of a vehicle on the street without any context. The Association Directors believe that residents are in the best position to determine who a vehicle belongs to on their street and whether there is an ongoing issue with parking compliance or a temporary situation that will resolve itself.

What powers does the Association have to make people comply?

The Association has several powers to compel compliance with the restrictive covenants that includes levying fines, suspending privileges to use the pool or other common areas and other remedies under the Declaration. Unpaid fines are referred to the Association attorney for collection and lien proceedings.

How can I comply? I have too many drivers / cars in my household. I have guests coming. I have my kids home from college for the holidays, summer vacation, etc.

The Board initially considered a process for granting temporary waivers for residents with circumstances that might make it difficult to comply. Upon review, our attorney advised the Board that it lacks such authority under the Association’s governing documents. The Board can elect not to enforce a violation but the Board cannot waive a violation such that it is not a violation. While the Board may choose not to enforce known parking violations, doing so is not in the long term best interest of the Association. Therefore, the Board, on behalf of the Association, is obligated to enforce the restriction as written in a uniform, consistent manner.

What if someone I don't know parks in front of my house. Will I get cited or fined?

Probably not. We expect the vast majority of complaints to be for residents habitually using the street as an extension of their driveway so it's unlikely you’ll get cited accidentally but if it happens, simply contact the board. The Association has a process for disputing and resolving non-compliance issues.

What if I have additional questions?

Please contact the board and we’ll do our best to get an answer and may update this FAQ as well.