Unintended Consequences of the Stay at Home Orders

INCREASED VEHICLES AND TRAFFIC AND ENFORCEMENT OF THE ASSOCIATION’S VEHICLE RESTRICTIONS

BY JENNIFER M. JACOBSEN, ESQ. & RAIHANE A. DALVI, ESQ.

The COVID-19 stay-at-home restrictions and the pandemic in general have together significantly increased the number of Californians working and learning from home. Additionally, many Californians remain unemployed during state and/ or county shelter-in-place restrictions.

Due to the unprecedented number of residents working, learning, and staying at home, community associations are finding many new challenges. One notable challenge is the increased strain on parking amenities. It is no surprise, then, that many associations are dealing with a substantial increase of parking-related violations such as improper parking on common area streets and residents using parking spaces that are exclusively reserved for guests.

Boards of directors are now faced with a unique challenge. On one hand, boards have a fiduciary duty to enforce the governing documents in order to protect the interests of the association’s members as a whole. On the other hand, boards must also acknowledge the changing needs of their communities and must act reasonably with enforcement. Many of these increased parking violations result from associations being unable to provide adequate parking amenities in light of shelter-in-place orders amid the COVID-19 pandemic. Communities are not typically designed for all residents to be working and learning from home, and therefore many of these violations are a product of necessity during the pandemic. Additionally, the COVID-19 pandemic has raised anxieties and placed many members in a difficult financial situation, which can make violations (and resulting fines) an even more stressful issue to deal with for associations as well as the owners.

With this in mind, the following question has arisen for many associations: what is the best way to provide greater flexibility and leniency for parking violations during the COVID-19 pandemic? Although there is no easy answer, several different options are available depending on each association’s respective abilities, needs, and concerns. Of course, any plan of action should start with consultation with the association’s legal counsel to determine the best strategy for each particular community.

One option is revising existing parking rules in order to provide greater context and flexibility during these challenging times. However, there are certain challenges when adopting a rule change. First, rules cannot contradict an association’s Declaration of Covenants, Conditions and Restrictions (“CC&Rs”). (Ekstrom v. Marquesa at Monarch Beach Homeowners Assn. (2008) 168 Cal. App. 4th 1111.) For example, if a board wants to allow residents to park on the street, but the CC&Rs explicitly prohibit street parking, then such rules cannot be adopted because they would directly conflict with the CC&Rs. Second, a rule-change can be costly and time intensive as it requires involvement of legal counsel and notice and comment by the members. Third, unless adopted as an emergency rule, assuming the rule change was adopted as a temporary measure in light of the pandemic, then the only way it can be undone is by adopting (yet another) rule change.

A simpler option may be to adopt a policy on the enforcement of certain parking restrictions. Under what is commonly referred to as the “business judgment rule,” boards have discretion when it comes to their enforcement of governing documents. In this regard, the COVID-19 pandemic provides boards with a good reason to refrain from taking immediate enforcement action for specific parking violations. For example, in a situation where the governing documents prohibit driveway parking, the board could decide to refrain from immediately addressing a college student required to “distance-learn” and live at home who is parking an extra vehicle in the driveway. The board is not “permitting” the violation, but rather delaying enforcement until it can reasonably take enforcement action given the current shelter-in-place orders.

As another option, boards may also grant requests for temporary variances on a case by-case basis as a result of the COVID-19 pandemic. For example, variances can address unique situations such as the displacement of vehicles from garages in order to allow additional space for “distanced learning” by children. Granting such variances falls within a board’s discretionary authority with respect to taking enforcement action. If a board’s authority to grant variances is not specifically addressed in the governing documents, then it should work with legal counsel to craft a board resolution addressing variances for COVID-19 relief and providing related parameters and requirements.

Of course, certain parking restrictions cannot be waived because they relate to life-safety issues, such as prohibited parking in firelanes, use of disabled spaces, and blocking ingress and egress. These types of parking restrictions must continue to be enforced.

Regardless of what option a board decides is best for their association, it should take the opportunity to explain these changes to its members and residents. Such proactive communication will result in greater transparency, acknowledge the changing needs of the community and the requirement for eventual compliance, and build trust between the association and its members.

Jennifer M. Jacobsen, Esq. and Raihane A. Dalvi, Esq. are attorneys with Baydaline & Jacobsen LLP and serve as general counsel to community associations. They service Sacramento and San Francisco. Jacobsen has been in the industry 28 years and Dalvi four years.