Clarification on "No Business Uses"

I really need some clarification on this rule.

I live in a subdivision of 65 homes with values from about $550,000 — $1,200,000. There is a homeowner that has fallen on hard time and has let his yard completely die (3-4 years without water) About a year ago I notices that on certain days his garage door was open and he was selling exercise equipment. Now he is selling washer's, dryer's and refrigerators. I've complained about this to the HOA President and he makes excuses for the situation. The President doesn't like to enforce the rules and the Property Manager backs him up. I've been told by the President that he has a business license, so I guess that makes it legal.

Below is the rule for business Use Restrictions in our HOA CC&R's. It was my understanding that if you could see it, hear it or smell it, it would not be allowed. Can anyone give me some good feed back about this?

NO BUSINESS USES. No trade or business may be conducted in or from any home, except that an owner or occupant residing in a home may conduct business activities within the home so long as: (a) the existence or operation of the business activity is not apparent or detectable by change in the ordinary traffic patterns for the subdivision, sight, sound or smell from outside the home, (b) the business activity conforms to all zoning requirements for subdivisions, and (c) the business activity is constant with the residential character and does not constitute a nuisance or a hazardous or offensive use, or threaten the safety of other residents. In the event of a dispute between an Owner and the Board Of Directors regarding compliance with this subsection, the decision of the board of Directors shall be final, conclusive and binding.

My opinion, and others will probably follow suit, is this activity constitute a business that is apparent and would be detectable because of increased traffic patterns. Having your garage open all day selling gym equipment, now washers and dryers. The rule was created to allow individuals who have a consultant job from home, a tax business without noticeable traffic, workers who telecommute from home. This person apparently has an appliance store open for business from his open garage. Most CCRs and/or rules require the garage door be closed when not in use, "normal use". Selling appliances with the door open, IMHO, doesn't constitute normal use.

A garage sale to sell a few things is one issue. Open garage door and selling appliances several days a week is a business.

Report him to the BOD for a Covenant violation.

Is he selling off his personal household items or bringing in appliances from other sources to sell? If he is simply selling off everything he owns, that is not a "business".

And the majority response so far is no. But as I posted earlier if you keep complaining to the president and the president doesn't want to act then go around him. At least then you will know where the Board stands, who knows it might be time for some fresh blood one the Board.

Mike

Check you CCRs. Most of those documents have a provision whereas, the declarant (developer), association or any owner shall have the right, but not the obligation to enforcement the provision set forth in that document.

Owners have the right, if they so choose, and as a last resort, provisions specifically stated in the CCRs. Owners do not have the authority to enforce any item(s) in the Rules and Regulation, UNLESS, it is spelled out specifically in the CCRs. For example, the rules and regulations may state that the no business clause from the CCRs, but if the rules and regs states you have to remove trash can by 6:00 PM the day of pickup and it doesn't state that exactly in the CCRs, owners cannot try and enforce.

Just a thought, if your neighbor begins to sell the items with the garage door closed it would pass the see it test. These items don't make noise or smell. If there is increased traffic, you could have something there.

Would it be acceptable to you if the neighbor kept the garage door closed when he is showing the items. Sounds like he could use some patience from all of the neighbors. And maybe its not a long-term endeavor. I say show some tolerance here but ask that he keep the garage door closed and quiz him as to how long he plans to be engaged in that business.

It's clear that you can see the business activity and a yard sale does not go on for a year. If you don't feel that you got your definitive answer here, then you should seek the advice of an attorney. It will be your only recourse anyway if the board ignores your formal complaint.

No one wants to be the bad guy in this situation, and if your president can't be that person you have a serious conflict of interest don't you? Emotions have to be out of the picture and if that' not possible, get the votes needed to remove him from the board.

And remember, it's not what you say, but how you say it!

Some communities don't allow garage, tag, or yard sales (or similar sales by any other term) either. Check your own CCRs, Declaration, or rules and regulations to be sure.

So what I'm getting from this is that you all agree that the language in our NO BUSINESS USES rule is clear when it says "if you can see it"? I do like the suggestion that he keep his garage doors closed.

We have three officers an they all defer to the President. He makes all the decisions.

I agree with this but instead of a lawsuit against your neighbor try the direct approach first. Have a tactful conversation with your neighbor and as I said before ask that he keep his garage door closed and quiz him about how long he plans on doing this. Maybe it's just temporary until his "hard times" have improved. I am a strong, strong advocate of compromise and communication between the parties involved.

I hate it when a couple of board members come to your door to have a "talk" because a neighbor has complained about something. I much prefer the direct neighbor to neighbor approach and let's see if we can work this out. It's not always necessary to involve the board.

No your rules are NOT above your local, city, county, state, or federal laws. They can be more restrictive than your local laws but they can not supercede them.

Some would argue that if the restriction/rule is more restrictive that it is superseding local codes.

Example: City code says fence can be up to 6 feet high. HOA says there can be no fences.

Hence the HOA rule appears to be superseding the city code which allows fences.

Why would the city code even be in effect if you can't have any type of fence? Hence not an applicable state or local code to overrule.

IMHO- If you can see it, then it is against this section, and as well, whatever section say's you can't have appliances in your front yard, driveway etc. I like Banks suggestion, if your biggest complaint is the fact that you can SEE the appliances all day long, then it makes sense to ask him to keep the door closed. That's a good compromise for dealing with this situation in today's economy. The important question is to ask a time frame, and really, the less it's seen, the less it matters at the end of the day.

Here is a valuable link that was shared on this site, and it was here that I found the order of precedence for my state.
http://www.hoa-usa.com/default.aspx

You mentioned officers and a president, those officers can be board members and I doubt you can have only one board member, (unless a developer??). So perhaps now you can reach out to them again with the solution of a compromise. I bet they would be welcome to hearing it, even if you suggested it via email to open the discussion.

no no no ........ you have an HOA to maintain the engineered storm water retention utilities ~ all else was merely a 'sales pitch' by the developer