By Lindsey Thurswell Lehr / Published September 2019
The issue of on-street parking has reached a boiling point at an Orlando-area community after the HOA began enforcing its bylaws on parking restrictions and towing vehicles. The HOA’s actions have sparked at least two lawsuits filed by homeowners as a result of its enforcement of the restrictive covenants.
According to a recent report by Orlando CBS affiliate WKMG News 6, residents of the Wesmere community say the HOA is now, for the first time in nearly 30 years, enforcing a street-parking ban that is contained in its bylaws.
“You can’t go from allowing it or not enforcing it to suddenly providing no exceptions,” said homeowner Denise Harrison in the station’s report. In her 22 years as a resident in the community, Harrison says the ban on street parking that is codified in the bylaws has never been enforced. However, new board members were elected in 2017, and the association began warning residents that enforcement of the rules on street parking was coming.
Harrison has asked the HOA for a moratorium on enforcement until the issue is resolved, but two other residents have gone further by filing separate lawsuits against the association. According to one of the suits, 315 of the 565 homeowners in the community have signed a petition supporting an amendment to the governing documents that would allow for on-street curbside parking.
“The petition was filed because the owners have legally adopted an amendment to the Declaration of Protective Covenants and Restrictions for Wesmere, but the board has refused to acknowledge that such has been done,” wrote attorney and Wesmere homeowner Rick Leone in an email to the station. “To the contrary, despite being informed that the amendment was adopted, the board has continued to place warnings on vehicles which may, or may not, have been legally parked on the street if the provisions of the Amendment had been put in place, and has also towed a number of vehicles. This is a violation of owners’ property rights.”
The attorney is also seeking an injunction to get the parking enforcement to stop while the lawsuits are litigated.
As the petition demonstrates, not everyone in the community agrees with the efforts opposing the enforcement of the community’s parking restrictions. The station also spoke with a homeowner who said he supports the ban on street parking. In fact, he said he moved to Wesmere because he did not want street parking, and he is opposed to seeing his HOA fees go to paying for court battles over the issue.
To his chagrin, it appears that two potentially lengthy and expensive court battles are looming for the association, and the community’s residents will bear the price through their monthly assessments.
The predicament the Wesmere association is currently in was a result of decisions made by the board decades ago. Prior boards at that time apparently decided to no longer enforce its bylaws against on-street parking. However, rather than going through the appropriate legal process of amending its bylaws to eliminate the restriction, the HOA chose to simply forgo enforcement.
That was an extremely ill-advised decision, one which was possibly undertaken without the counsel of experienced and qualified association attorneys. Lax enforcement of association bylaws very often leads to serious disputes down the road as owners will have diverging opinions on whether the restrictions in question should indeed be enforced or whether the restrictions are selectively pursued only against some owners. Absent an amendment to the association’s governing documents, associations are bound to enforce their restrictions uniformly against all owners. Therefore, decisions of a board to avoid enforcement are essentially just kicking the can down the road.
The problem is that once the issue of non-enforcement comes to a head, the attitudes and opinions on both sides will have hardened. In the case of Wesmere, it took decades for the question of on-street parking to once again be taken up by the community’s board of directors, and during those years, many residents became accustomed to the convenience of having the extra parking spaces in front of their homes.
By deciding to renew the enforcement against on-street parking, the board of directors sparked opposition from the community’s homeowners and the repercussions have ensued. The HOA cannot correct the mistakes of the past, but if the owners truly want the restriction removed, the association can take a reasoned approach toward finding an equitable resolution by presenting the issue to the owners for a vote to amend the community’s covenants and restrictions.
Most association governing documents include voting requirements for amendments stipulating that they must be approved by super majorities of two-thirds or three-fourths of the membership. Owners may also request that a board present a proposed amendment for a vote of the membership during regular or special meetings of the association.
While the process for changing a community association’s governing documents can be difficult and tedious, the situation at the Wesmere community illustrates the importance of the enforcement of restrictive covenants and the membership’s ability to modify covenants to adjust to the current times and needs of the community. Boards of directors should work closely with highly-qualified association legal counsel to undergo the amendment process and address regulations that may be outdated or unenforced.
Lindsey Thurswell Lehr
Attorney, Siegfried Rivera
Lindsey Thurswell Lehr, an attorney with the South Florida law firm Siegfried Rivera, is based at the firm’s Coral Gables office and focuses on construction, real estate, and community association law. The law firm also maintains offices in Broward and Palm Beach counties. For more information, visit www.siegfriedrivera.com or www.FloridaHOALawyerBlog.com or call (305) 442-3334.