HOA prohibiting daycare

JoeP8 (Virginia)
Posts: 1

Posted:

Following restriction is in CC&R-

Home Offices: No lot shall ever be used for any business, commercial, manufacturing, mercantile, storage, vending, sales, or other non-residential purpose, provided, however, that a Member may maintain an office or home business in the dwelling constructed on such Member’s Lot if: (i) such office or business does not generate significant traffic or parking usage (as determined by the Board of Directors or its designated committee) by clients, customers, or other persons related to the business; (ii) no equipment or other items related to the business are stored, parked, or otherwise kept on such Member’s Lot or the Property outside of an approved enclosure, except with the prior written approval of the Covenants Committee; (iii) such Member has obtained any required approvals for such use from the appropriate local governmental agency; (iv) there is no exterior signage or any signage visible from the exterior.

Family daycare is currently prohibited presumably due to i- significant increase in traffic.

From another forum post for Maryland, it looks like family daycare needs to be explicitly included in the restriction list and does not fall under the umbrella restriction of business/commercial use.

http://www.schildlaw.com/housinglaw-leg.htm#s11b-111.1

Will greatly appreciate any help in a similar case for Virginia- Should home day care explicitly be included to be prohibited, or is the current restriction as stated above a reasonable ground for prohibition.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

That is typical language in most HOA contracts.Rule of thumb should be do you need a business licence/regulations to do what you do AND do you need to hang out a "shingle" to get business on the outside? Then it is against the HOA rules of a business.

You can still have a business license and work from witin your home in a HOA but can in no way put out signs of operation nor use the place as a PUBLIC office. Basically a Dentist can't purchase a home, put out a DENTIST sign, and see patients. That is the general lithmus test I use determing if someone is within the rules.

Just my opinion but exclusively listing daycare isn't necessary and redundant. A waste of time and money to go about changing your CC&R's for unless there are more changes than that to be made. This change could cost thousands of dollars. take a majority vote of owners, and consume soo much time. It may best just define this in somw meeting note, memo, or by laws...

Former HOA President

JeanneK3 (Maryland)
Posts: 562

Posted:

Maryland law says one cannot prohibit day care centers unless a specified process involving the community is followed.
Jeanne

RenoldeI (New York)
Posts: 3

Posted:

Yea, I think Maryland is unique regarding this.

BradP (Kansas)
Posts: 2,640

Posted:

depending on the size of the daycare it coudl qualify as bringing in excessive traffic. If there are 5 kids then 5 cars have to drop off in the morning and pick up at night. Excessive is a very subjective term.

JohnC46 (South Carolina)
Posts: 14,265

Posted:

As the OP posted:

Following restriction is in CC&R-

Home Offices: No lot shall ever be used for any business, commercial, manufacturing, mercantile, storage, vending, sales, or other non-residential purpose,

Does not a day care business break/defy the CC&R's?

YES or NO

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By JohnC46 on 02/04/2012 2:27 PM
As the OP posted:

Following restriction is in CC&R-

Home Offices: No lot shall ever be used for any business, commercial, manufacturing, mercantile, storage, vending, sales, or other non-residential purpose,

Does not a day care business break/defy the CC&R's?

YES or NO

you forgot the second part of that amendment:

however, that a Member may maintain an office or home business in the dwelling constructed on such Member’s Lot if: (i) such office or business does not generate significant traffic or parking usage (as determined by the Board of Directors or its designated committee) by clients, customers, or other persons related to the business; (ii) no equipment or other items related to the business are stored, parked, or otherwise kept on such Member’s Lot or the Property outside of an approved enclosure, except with the prior written approval of the Covenants Committee; (iii) such Member has obtained any required approvals for such use from the appropriate local governmental agency; (iv) there is no exterior signage or any signage visible from the exterior.

a day care may or may not cause traffic issues, it may or may not have equipment (play stuff) stored otuside...

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By BradP on 02/04/2012 2:29 PM

Posted By JohnC46 on 02/04/2012 2:27 PM
As the OP posted:

Following restriction is in CC&R-

Home Offices: No lot shall ever be used for any business, commercial, manufacturing, mercantile, storage, vending, sales, or other non-residential purpose,

Does not a day care business break/defy the CC&R's?

YES or NO

you forgot the second part of that amendment:

however, that a Member may maintain an office or home business in the dwelling constructed on such Member’s Lot if: (i) such office or business does not generate significant traffic or parking usage (as determined by the Board of Directors or its designated committee) by clients, customers, or other persons related to the business; (ii) no equipment or other items related to the business are stored, parked, or otherwise kept on such Member’s Lot or the Property outside of an approved enclosure, except with the prior written approval of the Covenants Committee; (iii) such Member has obtained any required approvals for such use from the appropriate local governmental agency; (iv) there is no exterior signage or any signage visible from the exterior.

a day care may or may not cause traffic issues, it may or may not have equipment (play stuff) stored otuside...

I undertand (and I can see your side of the issue) but my belief was the "caveats" are intended to allow an owner to run their business (outside sale person, insurance agent, etc.) out of their home while I interpet daycare as picking up and dropping off of those in day care and as such as causing traffic and/or parking usage issues as would a barber shop, beauty salon, etc.

Yes some businesses might have one client at a time parked in your driveway thus not a parking nor traffic issue, but I have a tendency to look at the intent versus the letter of laws/regulations and I think the intent was no commercial/business traffic.

Remember there are two sides to each story thus billable hours for lawyers....LOL

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By JohnC46 on 02/04/2012 3:05 PM

Posted By BradP on 02/04/2012 2:29 PM

Posted By JohnC46 on 02/04/2012 2:27 PM
As the OP posted:

Following restriction is in CC&R-

Home Offices: No lot shall ever be used for any business, commercial, manufacturing, mercantile, storage, vending, sales, or other non-residential purpose,

Does not a day care business break/defy the CC&R's?

YES or NO

you forgot the second part of that amendment:

however, that a Member may maintain an office or home business in the dwelling constructed on such Member’s Lot if: (i) such office or business does not generate significant traffic or parking usage (as determined by the Board of Directors or its designated committee) by clients, customers, or other persons related to the business; (ii) no equipment or other items related to the business are stored, parked, or otherwise kept on such Member’s Lot or the Property outside of an approved enclosure, except with the prior written approval of the Covenants Committee; (iii) such Member has obtained any required approvals for such use from the appropriate local governmental agency; (iv) there is no exterior signage or any signage visible from the exterior.

a day care may or may not cause traffic issues, it may or may not have equipment (play stuff) stored otuside...

I undertand (and I can see your side of the issue) but my belief was the "caveats" are intended to allow an owner to run their business (outside sale person, insurance agent, etc.) out of their home while I interpet daycare as picking up and dropping off of those in day care and as such as causing traffic and/or parking usage issues as would a barber shop, beauty salon, etc.

Yes some businesses might have one client at a time parked in your driveway thus not a parking nor traffic issue, but I have a tendency to look at the intent versus the letter of laws/regulations and I think the intent was no commercial/business traffic.

Remember there are two sides to each story thus billable hours for lawyers....LOL

I don't disagree...comes down to the boards interp...

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By BradP on 02/04/2012 3:22 PM

Posted By JohnC46 on 02/04/2012 3:05 PM

Posted By BradP on 02/04/2012 2:29 PM

Posted By JohnC46 on 02/04/2012 2:27 PM
As the OP posted:

Following restriction is in CC&R-

Home Offices: No lot shall ever be used for any business, commercial, manufacturing, mercantile, storage, vending, sales, or other non-residential purpose,

Does not a day care business break/defy the CC&R's?

YES or NO

you forgot the second part of that amendment:

however, that a Member may maintain an office or home business in the dwelling constructed on such Member’s Lot if: (i) such office or business does not generate significant traffic or parking usage (as determined by the Board of Directors or its designated committee) by clients, customers, or other persons related to the business; (ii) no equipment or other items related to the business are stored, parked, or otherwise kept on such Member’s Lot or the Property outside of an approved enclosure, except with the prior written approval of the Covenants Committee; (iii) such Member has obtained any required approvals for such use from the appropriate local governmental agency; (iv) there is no exterior signage or any signage visible from the exterior.

a day care may or may not cause traffic issues, it may or may not have equipment (play stuff) stored otuside...

I undertand (and I can see your side of the issue) but my belief was the "caveats" are intended to allow an owner to run their business (outside sale person, insurance agent, etc.) out of their home while I interpet daycare as picking up and dropping off of those in day care and as such as causing traffic and/or parking usage issues as would a barber shop, beauty salon, etc.

Yes some businesses might have one client at a time parked in your driveway thus not a parking nor traffic issue, but I have a tendency to look at the intent versus the letter of laws/regulations and I think the intent was no commercial/business traffic.

Remember there are two sides to each story thus billable hours for lawyers....LOL

I don't disagree...comes down to the boards interp...

We agree, but the real issue is how much time/money is one willing to spend to fight for what they believe in, be they right or wrong?

I say fools with no money are not dangerous. Nice people with money are not dangerous. Fools with money are dangerous....LOL

PeterD3 (Florida)
Posts: 708

Posted:

(i) such office or business does not generate significant traffic or parking usage (as determined by the Board of Directors or its designated committee)

This is the rub here. Just because the BoD determines something doesn't make it enforceable. They would have to use accepted standards to determine such 'significance' and avoid arbitrary and subjective decisions.

BradP (Kansas)
Posts: 2,640

Posted:

Quote:

Posted By PeterD3 on 02/04/2012 5:06 PM
(i) such office or business does not generate significant traffic or parking usage (as determined by the Board of Directors or its designated committee)

This is the rub here. Just because the BoD determines something doesn't make it enforceable. They would have to use accepted standards to determine such 'significance' and avoid arbitrary and subjective decisions.

yes, but unfortunately they wouldn't be held to that until it reached court

JohnC46 (South Carolina)
Posts: 14,265

Posted:

Quote:

Posted By BradP on 02/04/2012 5:29 PM

Posted By PeterD3 on 02/04/2012 5:06 PM
(i) such office or business does not generate significant traffic or parking usage (as determined by the Board of Directors or its designated committee)

This is the rub here. Just because the BoD determines something doesn't make it enforceable. They would have to use accepted standards to determine such 'significance' and avoid arbitrary and subjective decisions.

yes, but unfortunately they wouldn't be held to that until it reached court

Wisely said.

TimB4 (Tennessee)
Posts: 21,044

Posted:

Joe,

Our Association records indicate that we had an issue of a daycare provider in the development back in 2004. Based on the information available, it appears that the Association was unable to prevent it but when we insisted that the provider sign the following letter (written on the advice of the attorney) the day care issue ended:

Dear x,

It has been brought to the attention of the Board of Directors that you may be operating a day-care service from your home.

For our liability protection and based on advice of counsel, we are requesting that you provide copies of your licenses and liability insurance which is necessary to run a day care service in Fairfax County. We also trust that you have called the Fairfax County Office of Children for the rules and regulations of childcare within a neighborhood.

The welfare of the children under your care is your responsibility and you agree, in order to continue to operate this service, to indemnify and hold the [name of association] and it's directors, members and officers harmless from any injuries or accidents involving the children under your care.

Please sign below indicating your awareness and agreement to these terms and return this letter along with copies of the requested licenses and insurance.

If you have questions please contact x at ###-###-####

Thank you,

x, President

I have read, understood and agreed to the above conditions:

Signature, Date

Based on the records available, the letter was never returned and the daycare service ceased to exist.

Tim