Q: Recently the roads in our 105-unit townhouse development were turned over to the town. Previously the association did not allow parking on the streets. We would still like to keep that prohibition in force. Can you steer us to precedents where an association can ban street parking for its members, even though the locality allows parking? (Greenbush, New York)

A: Obviously, the nature of your association's authority is key, and the status of the streets in your community‹public or private‹is one of the biggest factors affecting your control over them.

TWO PRECEDENTS

In one case, a Maryland association's covenants precluded the regular parking of trucks or commercial vehicles in streets, yards, or driveways within the subdivision. One resident insisted on parking a one-ton truck in his driveway and on the street outside his home. The streets in the community had been dedicated to the city, prompting the owner to claim that the association had lost its power to control their use.

However, the court focused not on the status of the streets but on the obligation of residents and unit owners to live by the covenants applicable to the community. In the court's view, the important fact was that the owners had agreed to live by those covenants. The court found that the association was regulating the conduct of its owners and members, rather than regulating the use of the otherwise public streets.

Thus, the court's only concern was that the resident had agreed not to park a truck on the streets and that this agreement was enforced. While members of the public might be free to park on the streets, residents and owners remained bound by the governing documents and were prohibited from the same parking.

Another case, in New Jersey, had different facts, the most important of which turned out to be a specific statute. As a result, the court took a contrary view and barred an association from enforcing the motor-vehicle laws within its community‹even though the roads were still private.

The statute in question allowed private-property owners to request that the local police patrol private roads. The association filed a formal request asking police to assume jurisdiction for enforcement of motor-vehicle violations on its roads. Subsequently, the association amended its own rules to include such violations, including speeding and reckless driving. The community manager began enforcing these new rules, using a radar detector to identify violators and then sending notices of violations and fines.

A unit owner who had been cited for speeding enlisted the aid of a local prosecutor, who filed suit to prohibit the association from enforcing the vehicle code. Citing concerns about uniformity in traffic regulation and the impact on public safety, the court found that private enforcement undermined public enforcement and should not be allowed. Its ultimate conclusion was that once the roads are dedicated to the public, the public's jurisdiction over them is preemptive and exclusive. This rationale, focusing on public safety, is more applicable to moving violations than it is to parking issues.

SUBSIDIARY QUESTIONS

So what is an association to do? One thing that stands out in these cases is that we don't know what was (or wasn't) done behind the scenes. Why do some unit owners seem intent on defying the rules? Could the association have had better success using the power of persuasion rather than legal proceedings?

When you conclude that the legal route is the only one that can solve your parking problem, check your covenants for language that supports your association's right to regulate the actions of its members, as well as the use of its roads and facilities. Check your state statutes carefully, looking for provisions on the effect of dedication and the power to enforce motor-vehicle rules. The answers to those subsidiary questions will help you find the solution.