Are On-Street Parking Bans Valid?

We regularly meet with homeowners whose HOAs threaten to impose fines or even take them to court to enforce on-street parking bans. In one case, the HOA spent more than $40,000.00 unsuccessfully attempting to enforce an on-street parking ban against a family who had five licensed drivers in the family.

Are these bans enforceable? Arizona law says that the HOA has "no authority over and shall not regulate any roadway" if it is a public street. But this law only applies to planned communities whose CC&Rs were recorded since December 31, 2014. So if your HOA is new or if it has recorded an amendment to its CC&Rs since December 31, 2014, the HOA does not have authority to ban you from parking on public streets.

What about those older associations or those that have not yet amended or refiled its CC&Rs? The answer often turns on the precise language used in the CC&Rs. However, it does not make sense for HOAs to be able to regulate public streets. HOAs, after all, are not public entities. Although no Arizona court has had the chance to address this specific issue, one court in New York has ruled that HOAs cannot regulate the use of public streets in this way:

[T]he regulation of public roads is vested exclusively in governmental bodies, usually the municipality in which the road is located. Private persons or organizations such as homeowners associations have no capacity to limit the public’s use of public ways. Hence, a private covenant against overnight parking is not enforceable with respect to public roads.

Gillman v. Pebble Cove Home Owners Ass’n, Inc., 546 N.Y.S.2d 134 (1989). 

Finally, it is important to keep in mind that HOAs cannot enforce parking bans, even if they are valid, if they are doing so in a selective, random, arbitrarily, capricious, unreasonable and/or potentially discriminatory manner. A use restriction that singles out and targets a particular homeowner is unreasonable, arbitrary, capricious, and unenforceable. If all of your neighbors also park on the street and you're the only one getting fines or threatening letters, you may have a good selective enforcement defense.