Enforcing HOA Restrictions on Public Streets

A common question is whether an association can enforce its parking restrictions on streets that are public streets.  Yes, an HOA can have restrictions on parking on streets that are within the HOA’s subdivision and that are subject to the HOA’s jurisdiction and the HOA can enforce the restrictions by fining and other remedies.  The property within the legal description of the project (also shown on the recorded plat) is generally subject to the jurisdiction and restrictions of the association, even a road that’s dedicated to the public.  The CC&Rs are a private agreement between and among the association and the lot owners.  The owners have agreed to not do certain things as stated in that private agreement (the CC&Rs) and the association and other owners can enforce the agreement, except when it interferes with city or police enforcement authority and activities, which is where the issue of towing can cause problems.

Cities and counties have the preemptive right to enforce their traffic laws and an HOA can’t interfere with that.  Towing could be deemed to interfere with that, so I generally don’t recommend towing vehicles from public streets unless it’s clear the city/county or police don’t have a problem with it.  In a case where the police or city defer to the HOA, the association can usually tow if there is sufficient notice to all residents in the CC&Rs or rules that vehicles may be towed and with appropriate signage.  See Index, towing.

Public Use Constituting Dedication of Private Road

A private road is deemed no longer strictly private and is deemed dedicated and abandoned to the use of the public when it has been continuously used as a public thoroughfare for 10 years.  Utah Code § 72-5-104.

• "Continuous use" is use as frequent as the public finds convenient or necessary.  The use may be seasonal or follow some other pattern.
• The dictionary defines "thoroughfare" as a road forming a route between two places, or "a way or place for passage: such as: a : a street open at both ends, b : a main road." See merriam-webster.com/dictionary/thoroughfare.

Continuous use as a public thoroughfare is interrupted only when the regularly established pattern and frequency of public use for the given road has actually been interrupted for a period of no less than 24 hours to a degree that reasonably puts the traveling public on notice (for instance, by a locked gate or barricade preventing public access). For interruptions by use of a barricade: (i) if at least 72 hours advance written notice of the interruption is given to the appropriate highway authority; and (ii) the barricade is in place for at least 24 consecutive hours, then an interruption will be deemed to have occurred.

Installation of gates and posting of no trespassing signs are relevant forms of evidence but are not solely determinative of whether an interruption has occurred.

Note that use by the “public” does not include use by those with permission (which includes guests, invitees, the UPS driver and so forth).

Once established, a public dedication can’t be terminated unless the county does so by following certain formal requirements.

*Takeaway: If your association has private roads that are used by the general public as a route between two places and you want to maintain the private status of the roads, then every 9 or so years, you must close the roads to the public (but not to residents, guests and invitees) for at least 24 hours.  The association should maintain:

• a file of notices of closure given to the applicable highway authority by the association,
• other evidence of the closure, such as perhaps photos (properly dated and identified, including who took the picture) of the barricade used for the closure, and
• signed statements from two or three people, board members for instance, stating that the road was closed and for how long and on what date(s).

Note that if the highway authority demands that a closure cease and the property owner accedes to the demand, then it does not count as an interruption.

Cost of Maintenance of Roads

The default rule in Utah for the maintenance of private roadways is that, absent any agreement on the question of maintenance of a private way, the burden of upkeep should be distributed between the property owners in proportion to their relative use of the road, "as nearly as such may be ascertained."  Of course, this default rule can be altered (and usually is) by a homeowners association's CC&Rs, bylaws or other agreement.  In one Utah case, the court noted that the issue of maintenance costs could also be resolved by addressing the question of the ownership of the road. However, as the parties did not litigate the issue of ownership, the court did not address it there.  See Oak Lane Homeowners Ass'n v. Griffin, 2011 UT 25, 255 P.3d 677.

Easement by Plat

What happens if there is no written easement for use of a private road but there is a recorded plat?  There is a presumption of a private easement over a public or private road in favor of a landowner when:

• the landowner owns property abutting the public road,
• the property's deed references a recorded plat, and
• the recorded plat shows the public road.

However, only a presumptive easement is created, which may be extinguished under certain conditions. A private easement arises only if there is no evidence that such an easement has been abandoned prior to the conveyance.  See Oak Lane v. Griffin.