By Senior and Founding Partners, Neal McCulloh, Esq. & Kenneth M. Clayton, Esq.
Many individuals believe that commercial vehicles, or at least certain types of commercial vehicles, hurt property values and negatively affect a community’s desirability. Of course, the type of commercial vehicles a community may want to prohibit or restrict may vary significantly. By way of example, where one community may want to prohibit 18-wheelers, another community may want to prohibit any vehicle with signage thereon, while another community may want to restrict various types of vehicles of a certain size, weight, appearance, function, etc. Ultimately, we must acknowledge that restrictions on commercial vehicles, if not the prohibition of commercial vehicles altogether is extremely common in Declarations, if not the norm. Moreover, as additional developments come online, it appears that more and more covenants and restrictions limit and restrict, if not completely prohibit, commercial vehicles from communities.
In addition to the belief that commercial vehicles may lower property values, harm the appearance of a community and/or lessen the desirability of a community, please consider whether the parking of commercial vehicles on-site will deprive other occupants of needed parking spaces. Of course, when parked, some commercial vehicles extend beyond a single parking space (e.g., essentially take up two spaces) and create safety issues for persons and other vehicles.
The foregoing is not to suggest that all communities should have commercial vehicle restrictions, as the existence of commercial vehicles in certain communities may not have an adverse effect. In fact, certain commercial vehicles may have a positive effect. By way of example, police cars driven home by police officers and parked on-site may help to deter crime.
In addition to the above, we must acknowledge that commercial vehicles may be the only mode of transportation for some residents. As such, these individuals may strongly object to such restrictions and claim that depriving them of the right to park on-site is unfair and discriminatory. Even if a commercial vehicle is not a resident’s only mode of transportation, such person may feel that such restriction(s) are unfair as other Owners may have the right to park as many vehicles as they want in unassigned parking spaces.
Ultimately, a community association and its Membership need to determine, not only, whether to prohibit or restrict various commercial vehicles, but, if so, to what extent. However, if the association is going to prohibit and/or restrict them, then the type of vehicle which is to be restricted and/or prohibited should be clearly specified to the degree possible. Unfortunately, what constitutes a “commercial vehicle” is subject to interpretation and significant debate. Therefore, to the extent the association desires to regulate commercial vehicles, Clayton & McCulloh recommends that the association’s Declaration and any resulting Rules and Regulations promulgated by the Board of Directors address the following issues:
- The exact type of commercial vehicles the association wants to prohibit. As such, the regulation should not simply prohibit or regulate “commercial vehicles”. Rather, it should define and/or specifically spell out and describe (to the degree possible) the vehicles the Association intends to regulate to curtail confusion, challenges, ambiguity, disagreements, controversy and risk;
- If commercial vehicles are to be prohibited during certain hours, as opposed to altogether, the specific hours need to be delineated (e.g., if the association is going to regulate the time of day or length of time a commercial vehicle is allowed to be parked on-site, the time period should be expressly specified, as opposed to more vague restrictions such as “no overnight parking”), and
- The restriction should be adopted in an amendment to the association’s Declaration, as opposed to being solely within its Board-adopted Rules and Regulations, as this will substantially bolster its enforceability.
Unfortunately, most vehicle restrictions, including commercial vehicle restrictions, that we see in Governing Documents, are poorly worded, subject to different interpretation(s) and need to be amended to clarify, to the degree possible, the vehicles being regulated and how. Please remember that the lack of specificity in such restrictive covenant may not only jeopardize an association’s claim, but may, likewise, increase the association’s risk, not only with respect to enforcement, but also with respect to its failure to enforce. As such, please consider not only whether your association wants to regulate commercial vehicles, but also consider whether your Governing Documents will need to be amended. Please also appreciate that we recommend that if an association does not have the will or motivation to actually enforce a provision in your Governing Documents, the association should amend the provision to eliminate it. Please appreciate that associations and their Boards are ever increasingly being criticized and challenged, and sometimes sued, for their failure to enforce provision(s) within their Governing Documents.
 Of course, associations should consider how they are going to monitor whether parking (and/or continuous parking) of such vehicles transpires (i.e., violations occur) during such time periods.
 Note for Co-Ops, the restriction would normally go in its Bylaws.
 Note case law is clear that provisions within the association’s Declaration can be, to a degree, unreasonable, if not highly unreasonable, and still be enforceable. Conversely, provisions in Board adopted Rules and Regulations must be reasonable to be enforceable.