Speed rules on private roads are enforceable, but it’s tricky

Q. I live in an over-55 community. It consists of single family and duplex townhouses. Our association is responsible for maintaining our streets for repairs and snow plowing. The posted speed limit is 25 mph — which is regularly exceeded and neither the board nor management company does anything about it. As a retired former police officer, it really upsets me that this “speed rule” is not enforced. The police department can come in here and enforce the speed limit, but they typically do nothing.

My question is: Is the board responsible for enforcing this speed limit “rule” as they are supposed to enforce any other rules in the association? This is a safety issue, and I believe if someone is hurt or killed while crossing a street, the board, management and/or the association maybe liable. Thank you for your consideration.

A: Preliminarily, please keep in mind that it’s the board’s ultimate responsibility to ensure that rules are being uniformly and consistently enforced (assuming there is sufficient evidence to do so). Accordingly, do not just assume that the management company is purposely or inadvertently avoiding rule enforcement — there may be other facts, circumstances or reasons.

If the association has adopted a rule, then technically the board has legal obligation to enforce the rules uniformly and consistently — assuming there is sufficient evidence to establish that a violation may have occurred. If a board has no intention of enforcing a specific rule regardless of the extent of evidence, then the practical step is to remove the rule. A future board, however, can readopt that rule and start enforcing it.

In the real world, there are many types of association rules based on common sense or mirror village ordinances (for example, speeding or pet waste removal), but they are often very difficult to prove. Therefore, many associations will leave these rules in place as a deterrent or in the event a violation occurs and sufficient evidence exists, then of course the board should pursue the violation. When the board decides to enforce a violation, future uniformity and consistency very important to avoid accusations of “selective enforcement.”

Interestingly, the issue of enforcing traffic regulations within a private association used to be a heated legal issue in many states. The Illinois Supreme Court, however, eventually confirmed that an association can enforce its traffic regulations on its private streets. In the case in question, the court stated that the association is permitted to stop and temporarily detain members when there is probable cause or reasonable grounds to believe a violation has been committed. That is probably more aggressive than what most associations have in mind and often creates an unnecessary potential for confrontations. However, the board can certainly adopt a rule to establish speed limits for its private roads and levy a fine against people who violate the speed limit rule, after providing notice of the violation and an opportunity for a hearing.

Modern technology may permit the association to set up, for example, a “speed camera” to catch potential violators. Note, too, that an association can enter into an agreement with local law enforcement to enforce traffic laws on the association’s private streets. Additionally, a witness can state to the board that they are very familiar with how fast automobiles appear to be traveling and, in their opinion, the vehicle in question exceeded the speed limit. As you can imagine, these types of “opinion” or “circumstantial evidentiary” cases often turn into he-said-she said scenarios. Nevertheless, it’s up to the board to consider all the information provided in each situation and make a determination based on the evidence, whether electronic or based upon personal observations of others.

Remember, it’s not a criminal case which requires guilt “beyond a reasonable doubt.” Typically, all that is required is a majority of the board believe and vote that there is a “preponderance of the evidence” or (simply stated) that it is more likely than not that the violation occurred.

• Matthew Moodhe is an attorney with Kovitz Shifrin Nesbit in the Chicago suburbs. Send questions for the column to him at CondoTalk@ksnlaw.com. The firm provides legal service to condominium, townhouse, homeowner associations and housing cooperatives. This column is not a substitute for consultation with legal counsel.