In most HOA governing documents there is probably no more unclear topic than the section addressing commercial vehicles. Usually, the language is sparse and broad at best. In many instances the language will be similar to: “No commercial vehicles are to be parked on the street or in a member’s driveway.”
First and foremost, what is a commercial vehicle? Is a pharmaceutical representative’s company-owned car a commercial vehicle? The only way to determine that the car is not the member’s personal vehicle is by examining the vehicle’s registration. Is a police car a commercial vehicle? A police car is definitely not a member’s personal vehicle. Even with the broad restrictions on parking commercial vehicles, would a member be in violation if a third-party repairman’s vehicle was temporally parked during a service call?
The crux of the matter is what constitutes a commercial vehicle? The unversed may quickly reference any vehicle that is not personally owned, while not realizing many work vehicles may be owned individually by a tradesman. Or, vice versa, some individuals may have vehicles titled in family trusts or other liability shelters such that the vehicle would not be considered personally owned.
To some, the test for commercial vehicles is defined the same way the late Supreme Court Justice Potter Stewart defined pornography, “I know it when I see it.” Probably the best way to analyze the issue is to review well written commercial vehicle document language. To accomplish this, attorneys will construct language in attempts to define what constitutes this class of vehicle. The following two examples are actual commercial vehicle language taken from governing documents:
Example 1 – “Section 12. Commercial Vehicles. No commercial vehicles may be kept on any Lot and/or within Common areas without prior written approval from the Board of Directors. Any commercial vehicle approved by the Board of Directors to be kept on any Lot must be kept in a clean, well-maintained, orderly fashion so as not to be unsightly. Commercial vehicles prohibited are defined as: 1) any truck or vehicle with tonnage in excess of one (1) ton that may or may not have advertising signage; 2) any vehicle used for the purpose of transporting persons for hire; 3) any vehicle designated, used or maintained primarily for the transportation of property incident to a business; or 4) any vehicle used for providing services to another person or entity for a fee or profit; or 5) any other vehicle of a size that would not fit in a standard garage.”
Example 2 – “Section 18(b) A vehicle shall be deemed a commercial vehicle if the vehicle meets at least three of the following characteristics; the vehicle:
- weighs over 6,001 pounds (2,722 kg),
- has ladder or other equipment racks
- has commercial signage
- has dual axles
- pulls a trailer
- has a trailer attached
- has a liftgate
- has a lift bucket
- has a plow attachment
- is owned by a company or corporation
- has a commercial license plate
Handicap accessible and law enforcement vehicles are not considered commercial vehicles for purposes of these declarations…”
Even while both examples have very comprehensive commercial vehicle language, there will always be exceptions that just miss hitting one of these specific points. The most significant pitfall of any enforcement is not establishing a plan of action and, in certain situations, not seeking legal guidance. What is most important is a plan of action based on what the HOA governing documents allow and do not allow and uniform covenant enforcement. Legal guidance may be necessary to determine what the HOA can legally do within the structure of their governing documents. If there are enforcement issues with the governing documents, seeking legal guidance on the feasibility of amending the governing documents can be explored.
Everyone realizes it is important to work within the HOA’s governing documents and not to stretch any interpretation. But it is also vital to engage attorneys with specific community HOA experience and, of possibly even greater importance, to engage an attorney with “courtroom experience” to provide practical guidance on the likelihood for successful enforcement in court. Remembering that governing documents are contracts between the HOA and the membership, and that one of the basic tenets of contract law is that contract conditions must be certain, this legal principle can more accurately be summarized as contractual terms must be sufficiently certain, and not too vague or too ambiguous to be legally enforceable.
William Douglas Management, providing excellent management services to HOAs and condominium associations since 1980.
Copyright 2019 William Douglas Management, Inc.