Need advice on fighting an HOA citation - I can't park in my driveway!

14 Replies

We recently received a citation from our HOA and I am needing some advice on how to tackle this.

We have a structure that's commonly referred to as a porte-cochere in architectural terms (french for "carport") - it's basically a tunnel for an automobile that goes through our house. On the housing plans, it's listed as an "auto tunnel." The covenants for our development make no mention of auto tunnels - they state that "all residences must have a two car garage minimum. No carports are allowed." That's it. There's also no limitations on parking on driveways ANYWHERE on your property. And that's essentially what this is - a covered driveway.

The previous owners parked in the tunnel for 6 years; we have parked there for 2.5. This is the first citation either of us have received, and it states: "We have noted a vehicle parked in your portico. This no longer makes the area a patio; it has now become a carport, which is illegal." First off, it's not a portico, and second of all - they approved the structure that I'm parking in. If they approved the structure, does it matter what I do with it? If I throw a bed out there, it doesn't make it a bedroom - so why can't I park there? An auto tunnel is an auto tunnel - it doesn't magically transform into a carport by the fact there's a car parked there, does it? And by logic, they don't allow carports, yet they approved this structure - therefore in their eyes, it cannot be a carport. Or is my logic flawed?

Anyways, the housing plan that was approved by this same committee clearly shows a set of heavy CLOSED wrought iron gates on the front of the tunnel - such that NO ONE can drive through it, you can only go through to the gate and then park. And it's clearly a driveway - the paved area under the structure extends to our driveway lot in front of the garage on one end and all the way out to the street on the other side. You can't use it as a patio unless you want to get run over. From the plans, it's marked as an "auto tunnel," that also makes it clear that it's NOT a patio.

We initially received the citation from the property management association. We talked it over with their rep who agreed that this whole deal was asinine and took it to a member of the architectural control committee for review. He told her that he stands by his decision. I have no idea if he even looked at the plans or at the house - he obviously has NO clue about architecture tho.

Anyways, we have a meeting with the committee on Monday. I don't know at this point if this is someone who is just very misguided about the situation, or if it's one of those people hell-bent on a power trip. We talked with our builder (who is also incredulous at this stunt) and he suggested that we just sit and listen to what the board has to say, tell them thank you, and then use their words against them to defend our case at the next meeting. Our neighbor - who also has a tunnel and recieved a citation - is also going with us. The property management rep said she'd get us a list of others who received the same citation in the development so we'd have better strength in numbers, but she hasn't done so yet.

I normally would just let this fly, but this "auto tunnel" is the reason we bought the house - I have a lifted truck that won't fit in the garage, and 2 little kids that need to be strapped into car seats. Any parent who has done that in the pouring rain can tell you how much that sucks. This covered parking was exactly what we were looking for - and it was described as a parking area in the real estate ad as well. So it's something we NEED at this house. Right now, I'm parking in the front yard - which apparently isn't against HOA covenant. Unbelievable. Any advice on what to say to the board on Monday night - if anything at all - would be greatly appreciated.

BTW - here's a link to a photo of the structure in question:

http://i36.photobucket.com/albums/e16/wookiemouse/New%20House/d15c.jpg

Thanks in advance,

Stacy

Definitely get a lawyer and sue them.

The previous owner parked there for 6 years, you have parked there for 2.5 and now they come back and say it is illegal?

Not a chance that will stand up in court, even if it is against their rules, they have implicitly allowed this to go on and would lose in court on those grounds alone.

I would explain this to them once, and make it clear you will sue for punitive damages as well as all legal costs if they do not back down immediately.

Well, we want to be careful and not go in there with blazing guns. First off - we don't have the time or the money for a lawsuit. I know that's how most people lose their homes in HOA battles, so it would be our absolute last resort - even if our case seems foolproof. And secondly, we need to stay on good terms with this board as much as possible. We're planning on submitting a landscaping and pool construction plan next spring, and they could easily not approve the plan simply on spite.

I did some more thinking about this last night, and I think we're going to try to have them first define everything that was said in the citation (ie, define a carport, portico, porch, etc) and show us where those items in question are on our house plan. They're not there, so that will be one strike against them. Then, since they have the approved the original plans, we'll see if they can show us any changes that we've made to the structure since it was approved as NOT a carport. There have been no changes to the structure whatsoever in the 8 years that the house has been built - therefore, if it was built as not a carport, and there have been no changes 8 years later, then it is still not a carport - no matter what is housed underneath the roof. Finally, we're going to ask them to show us in the HOA covenants where it is not permitted to park in an auto tunnel - which is what we have and what they approved. They can't show us, because it doesn't exist.

At this point, they're pretty much looking like idiots, but they could still pull the power issue I'm sure. But I think our argument is pretty non-confrontational, we'll be able to get their words and definitions recorded to use against them as needed, and hopefully they'll realize that they don't have a leg to stand on. Or so I hope.

Originally posted by Stacy Boatman:
Well, we want to be careful and not go in there with blazing guns. First off - we don't have the time or the money for a lawsuit. I know that's how most people lose their homes in HOA battles, so it would be our absolute last resort - even if our case seems foolproof. And secondly, we need to stay on good terms with this board as much as possible. We're planning on submitting a landscaping and pool construction plan next spring, and they could easily not approve the plan simply on spite.

I did some more thinking about this last night, and I think we're going to try to have them first define everything that was said in the citation (ie, define a carport, portico, porch, etc) and show us where those items in question are on our house plan. They're not there, so that will be one strike against them. Then, since they have the approved the original plans, we'll see if they can show us any changes that we've made to the structure since it was approved as NOT a carport. There have been no changes to the structure whatsoever in the 8 years that the house has been built - therefore, if it was built as not a carport, and there have been no changes 8 years later, then it is still not a carport - no matter what is housed underneath the roof. Finally, we're going to ask them to show us in the HOA covenants where it is not permitted to park in an auto tunnel - which is what we have and what they approved. They can't show us, because it doesn't exist.

At this point, they're pretty much looking like idiots, but they could still pull the power issue I'm sure. But I think our argument is pretty non-confrontational, we'll be able to get their words and definitions recorded to use against them as needed, and hopefully they'll realize that they don't have a leg to stand on. Or so I hope.



i think you may need to redirect your landscaping and pool funds into legal funds...

it does appear that there is some on the board that are on a power trip. you can rest assure that they have legal funds and will use them if necessary. also, the board and mgmt company must follow the rules that were adopted. they cannot approve or not approve something because they havea bone to pick with you. i assure you that people may say that they will, however, think of the lawsuits that would transpire. if that were the case, sue them again and have them pay for your pool and landscaping.

good luck stacy! beautiful home btw.

The previous owners parked in the tunnel for 6 years; we have parked there for 2.5

I believe they have to notify the homeowner in a timely manner or they have little ability to enforce certain rules in the future. (Statue of limitations)

A Lawyer should not be needed as a board or mediation should be able to interept the convents. The Board didn't take action to stop constuction of the car port when the homes building plans
were filed. The Board failed to enforce or fine the builder or property owner regarding the infraction until it was settled.

Carport defined: A roof that covers a driveway or other parking area. Usually formed by a roof projecting from the side of a building.

Bring a couple of clear (focused) pictures of the carport to the meeting. Bring any written statements from
other property owners who can't attend with carports stating there opinion of the convent. The statement should indicate if they have been citied and when. Ask the board to amend or define in detail what types of carports are Not allowed. If they side with you ask them to provide a document that is signed and dated
by the current board members approving of the homes design and the carport.

I'm guessing if there are several variations of this type of structure, that you live in a planned community. That would mean that the auto tunnel was built before the HOA even took over for the developer. Also, it's clear from the picture that:
A.) a car is clearly designed to go through the tunnel. (i'm assuming your garage is also in your back yard.)
B.) The structure does not meet the legal definition of either a car port or patio.
C.) Parking there would have no material affect on any HOA residents.
D.) The structure was original to the house.

I would go to the meeting, and ask about the situation. If you need to defend your auto-tunnel situation, I would bring up the original specs, noting that the auto-tunnel was built prior to HOA authority, and therefore not subject to architectural review. Additionally, because there has been no structural changes, again, the auto tunnel is original to the house and again not subject to architectural review, and in fact was a feature included on several homes in the master planned community. I would also note that the auto-tunnel does not meet the legal definition of either a patio, or a car port. This issue is therefore out of the purview of the charter governing the Wisteria Lane HOA.

After that I would go on a guilt trip. Bring good cookies. Have fun in the suburbs.

Actually, it's a different situation than what you described - the HOA was in place prior to the lots being sold (ours was one of the first homes built, in 2001 - the covenant dates back to 1999). Each home is custom, most by different builders, especially in the older section we're in. After driving around a bit, the only other auto tunnel we saw was our neighbors, and it's pretty much identical to ours structure-wise - although it's listed as a porte-cochere on their plans, and the builder is different (their home was built 4 years after ours). Our plans WERE approved by the ACC - which, to me, means that they saw the structure at that time, deemed it NOT a carport, and the builder went with it. And it hasn't been an issue for 8 years. And the carport "definition" is tricky here, since NO WHERE in the covenant is a carport defined. I have seen some places online where my tunnel COULD be defined as a carport, and other places where it doesn't fit at all. So it just depends on what definition you go with.

Update - went to the meeting on Monday, and right now, we are temporarily allowed to park in the tunnel. Only 3 board members were present, and 2 of the 3 agreed with us, so now they have to take it to the full board for review. It sounds like we're small fry tho - they have about 5 other issues to review prior to ours, and they also mentioned something about creating a "standards board," which makes me nervous. For now, at least I can park out of the rain and mud. We'll see what they decide after the new year.

Some good news to note, at least - this HOA's legal funds come from dues. No bottomless pockets. A past newsletter (Aug 2008) mentioned that they had exceeded their legal budget for that year and were postponing lawsuits against homeowners until the next fiscal year. Right now, I know that they have 3 active lawsuits and 2 pending. So the last thing they need is for us to sue them, and I think they know that.

Stacy

It is always good to have a really good understanding of your HOA docs, I am a president of an HOA in FL and I can tell you there are a lot of things that are not always easy to find in the docs and you need to find those out. I always suggest to have a lawyer look into your situation

Originally posted by Lee F.:
It is always good to have a really good understanding of your HOA docs, I am a president of an HOA in FL and I can tell you there are a lot of things that are not always easy to find in the docs and you need to find those out. I always suggest to have a lawyer look into your situation


Not sure what you mean by "not always easy to find in the docs" I do know part of the problem with HOA rules are that they are not well worded are not defined or that the rules are written by an attorney who enjoys using their language "legalese".

The HOA rules should be clear, well worded, and understandable by the majority of society without using a resource or "hiring a lawyer" to determine its interpretation or meaning.

jeff is correct. it shouldn't be incredibly difficult to understand. i'm treasurer for our hoa and i can assure u that our bylaws are well-worded and understandable by the majority (anyone with an 8th grade reading level should be fine).

glad you can still park there stacy. i don't think you will have any issues. after 8 years of parking there you are fairly grandfathered in. you said u have been parking there for 2.5 years. that should exceed statue of limitations. i believe the only way they can enforce now is if you sold and not allowed the new owners to park. that is almost like approving someones paint color today and then deciding that 4 years from now the color is not allowable. it would never stand up.

Hi, this is interesting and I'm sure someone is on a power trip. Stick to your plan, go hat in hand and listen. When all has been said, your closing statement can simply be that the HOA approved the plans and the continued and uninterupted use of the property as designed and that their failure to object in a timely manner constitutes acceptance as a persriptive easement. As to your swimming pool and landscaping, if it is similar and customary, approval can not be unreasonably denied, while many may walk the other way in dealing with an HOA, their powers are limited. Many adopt rules and covenants that are in violation of quiet enjoyment and property rights under statute. HOA Boards are not made up of attorneys, they are people from various professions and usually have no clue as to what they can require contractually. Read your state statutes on easements and easements conveyed, since you purchased the home with improvements in place. While you don't really have an easement since you own the property, the same legal theory might be applied. Also, silence is construed as acceptance, especially with the approval of the building committee. I'd also tell others, a bit of politics, the same thing and that damages could be significant from a class action by all those with similar design, since I assume there may be a vote on the issue. You might also head this off by political manuvering with other homeowners in adopting such structures as being compliant. Have them define everything! Good plan. Above all do not stop using your structure as that may weaken your position. Bill

"this HOA's legal funds come from dues. No bottomless pockets. A past newsletter (Aug 2008) mentioned that they had exceeded their legal budget for that year and were postponing lawsuits against homeowners until the next fiscal year. Right now, I know that they have 3 active lawsuits and 2 pending. So the last thing they need is for us to sue them, and I think they know that."
Yes, the hoa's funds do come from dues, and the hoa can, and will, approve an emergency assessment on everyone to provide those funds. They do have the authority and they will use it, with the blessing of the hoa attorney and state and local laws--and the hoa insurance company.
If you get a lawyer, DO NOT get one associated with Community Associations Institute--(CAI) or any of its offshoots. They are anti homeowner, and fully support the boards and the associations.
I would bet that someplace in your documents that it says something like, "Just cuz we haven't ever enforced this or any rule before now against anybody, doesn't mean we can't enforce it now against only you." That is selective enforcement, which should be illegal, but many association boards do it and get away with it.
I don't see what state you are in, but many states now have an office that owners in associations can file complaints if all else fails. Call several state politicians and ask: Not all will know, and even if they do, may not want commoners to know. You may have to call the state attorney general office or some such to find out.
Others mentioned being grandfathered. That's possible, and probably likely, but don't count on that.
And now, knowing what you do about ***'s , would you consider selling and moving to a place where no one else has control over where you park?

Ofgift

Stacy
First off, beautiful house.

If an HOA is stacked up in lawsuits, something is wrong, seriously wrong. I would suggest getting with the homeowners to address that issue.

I wanted to ask, is it ok to park on your driveway? Just not the part of the driveway that happens to be in the 'tunnel'? If true, then seeing the car from the street is not the issue. I think they don't have much to stand on here.

I wonder how this went. I bought a home with a contingency in the sale. I would be allowed to pipe a drainage ditch in my yard. I went through the HOA and the DRC. Got approval and had the work done. Got final inspection from DRC 5 years ago. Now the HOA says they consider this a common element and said the DRC acted illegally in giving me permission. The guidelines specifically say I am responsible for maintenance and operation of the drainage ditch and all drainage on my lot. The HOA wants to change my easement and give the responsibility to the Town. The Town says although the piped ditch would be best option the other property owners on the ditch are not piped and they see problems in the future. Like other people demanding the Town to pipe thier ditches.How can an HOA do this. Do I not have any expectation of protection when I go through the process? This system has been in place with no problems.

Originally posted by Cindy Smart:
I wonder how this went. I bought a home with a contingency in the sale. I would be allowed to pipe a drainage ditch in my yard. I went through the HOA and the DRC. Got approval and had the work done. Got final inspection from DRC 5 years ago. Now the HOA says they consider this a common element and said the DRC acted illegally in giving me permission. The guidelines specifically say I am responsible for maintenance and operation of the drainage ditch and all drainage on my lot. The HOA wants to change my easement and give the responsibility to the Town. The Town says although the piped ditch would be best option the other property owners on the ditch are not piped and they see problems in the future. Like other people demanding the Town to pipe thier ditches.How can an HOA do this. Do I not have any expectation of protection when I go through the process? This system has been in place with no problems.


if the board had approved it and it was inspected, you are fine. especially if 5 years have passed.

i would simply mail them a copy of your approvals and consider it a dead issue. more than likely, the board members changed. they cannot just change their minds.

Free eBook from BiggerPockets!

Ultimate Beginner's Guide Book Cover

Join BiggerPockets and get The Ultimate Beginner's Guide to Real Estate Investing for FREE - read by more than 100,000 people - AND get exclusive real estate investing tips, tricks and techniques delivered straight to your inbox twice weekly!

  • Actionable advice for getting started,
  • Discover the 10 Most Lucrative Real Estate Niches,
  • Learn how to get started with or without money,
  • Explore Real-Life Strategies for Building Wealth,
  • And a LOT more.

Lock We hate spam just as much as you

Create Lasting Wealth Through Real Estate

Join the millions of people achieving financial freedom through the power of real estate investing

Start here