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VA HOA Enforcing a Covenent that the County does not allow.

Started by VictorN1 • 13 replies • 1708 views

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VictorN1 (Virginia)
Posts: 4
Posted:
- In Fairfax County Virginia, our HOA is enforcing a covenant that states Lot usage is limited to "Residential and Professional Office." usage. However, "Professional Office" is undefined. Our HOA recognizes that our bylaws and covenants are out of date and obsolete.

However, the County defines a Professional Office as :

HOME PROFESSIONAL OFFICE: The offices, studios or occupational rooms which are located within the single family detached residence of a duly licensed or certified physician practicing human medicine, chiropractor, osteopath, physical therapist or massage therapist, duly licensed practitioner of behavioral sciences, attorney, civil or professional engineer, accountant, architect, real estate appraiser or broker, insurance agent, or similar professional person.

(From Article 20 in the Fairfax County Zoning Code)

The key point in the definition above is "Single Family Detached".

There are no Single Family Detached homes in our neighborhood. Can the HOA enforce a covenant on usage that is not allowed by the county per county definition?

The reason I ask, is that our HOA is using this as a defacto ban on Home Businesses, which are allowed by the county but untouched upon in our rules and covenants.
CarolR11 (Colorado)
Posts: 2,563
Posted:
Welcome to the forum, Victor. but I lost track of your question. Is it that your HOA wants to ban the listed occupations that the county permits? And if so, is it because your'e not detached homes?
VictorN1 (Virginia)
Posts: 4
Posted:
'm not 100% sure what the HOA's intentions are... but they're enforcing a covenant that states that lots under their jurisdiction can be used for "Residential and Professional Office" use only.

No covenants touch upon Home Businesses. Which there are several that have been operating legally per the county for the last decade.

Per the county, Professional Offices are required to be single family detached homes. There are no single family detached homes in our community. The county will not issue a Professional Office permit to townhouses, thus no one in our community per the county can obtain a permit for a Professional Office.

The HOA is enforcing the usage for "Residential and Professional Offices" and sending out violation letters to folks running home based businesses which are legal per the county zoning ordinance.

Essentially they are saying that Home Based Business are in violation of "Residential and Professional Office" usage since they are not Professional Offices.

Can the HOA in this instance do this? It seems they are going against what is legal per the county.

Quote:
Posted By CarolR11 on 03/26/2014 10:49 AM
Welcome to the forum, Victor. but I lost track of your question. Is it that your HOA wants to ban the listed occupations that the county permits? And if so, is it because your'e not detached homes?

SteveM9 (Massachusetts)
Posts: 3,699
Posted:
Quote:

Can the HOA in this instance do this? It seems they are going against what is legal per the county.


Sure they can do it if its in your bylaws/ccr's. If your state allows people to have dogs and your HOA says no dogs, you cant have dogs. Same thing.

You need to read the specific terms of your HOA's rules on home based businesses. In many instances, you can simply deny your running a home based business and there is nothing they can do.
VictorN1 (Virginia)
Posts: 4
Posted:
The Bylaws/CCRs literally say nothing about Home Businesses. They're interpreting an undefined term in our CCRs (Professional Office) as a means to ban home businesses.

Quote:
Posted By SteveM9 on 03/26/2014 11:37 AM

Can the HOA in this instance do this? It seems they are going against what is legal per the county.


Sure they can do it if its in your bylaws/ccr's. If your state allows people to have dogs and your HOA says no dogs, you cant have dogs. Same thing.

You need to read the specific terms of your HOA's rules on home based businesses. In many instances, you can simply deny your running a home based business and there is nothing they can do.

JohnB26 (South Carolina)
Posts: 1,569
Posted:
.....and the beat goes on and on and on.....
LarryB13 (Arizona)
Posts: 4,099
Posted:
Victor,

How does the HOA know that a home is also being used as a business? Are owners putting up signs that invite others in? Are they obtaining business licenses from the county? What goes on inside a home is usually not the HOA's business so I would think that any suspicion that a home is being used for a business would have to be based on something external to the home.

If the HOA is using county business licenses as its basis for alleging that a business is being run from the home then a person could rent a private mailbox and register that as the business address.

VictorN1 (Virginia)
Posts: 4
Posted:
From what I understand a Homeowner went to an HOA meeting to ask permission to run a home business. And that created the issue.

The enforcement of the "Professional Office" thing goes against Public Policy. And nothing in our Covenants says anything about Home Businesses.

I'm wondering if this is even legal.

Quote:
Posted By LarryB13 on 03/26/2014 3:11 PM
Victor,

How does the HOA know that a home is also being used as a business? Are owners putting up signs that invite others in? Are they obtaining business licenses from the county? What goes on inside a home is usually not the HOA's business so I would think that any suspicion that a home is being used for a business would have to be based on something external to the home.

If the HOA is using county business licenses as its basis for alleging that a business is being run from the home then a person could rent a private mailbox and register that as the business address.


JanetB2 (Colorado)
Posts: 4,219
Posted:
Hi Victor:

If you want to know whether “legal” then you need to consult with an attorney.

If you want average citizen’s opinions based on their HOA experiences … then we can offer those opinions.

The following is what I understand with regards to your situation …

Stated in your documents is:
HOA is enforcing a covenant that states Lot usage is limited to "Residential and Professional Office”

Then because “Professional Office” is not defined in the CCR’s the Board is relying on the following local government definition:

HOME PROFESSIONAL OFFICE: The offices, studios or occupational rooms which are located within the single family detached residence of a duly licensed or certified physician practicing human medicine, chiropractor, osteopath, physical therapist or massage therapist, duly licensed practitioner of behavioral sciences, attorney, civil or professional engineer, accountant, architect, real estate appraiser or broker, insurance agent, or similar professional person.

I would say potentially if "Professional Office" is not defined in your documents then I do not see any reason the Board cannot rely on the local ordinance to define. If someone does not like that option then they can either get a band wagon going to change the CCR’s or to change the local government code. They can start by asking the local government why “Professional Office” under their definition is limited to “single family detached residence”.
LarryB13 (Arizona)
Posts: 4,099
Posted:
Quote:
Posted By VictorN1 on 03/27/2014 9:38 AM
From what I understand a Homeowner went to an HOA meeting to ask permission to run a home business. And that created the issue.

The enforcement of the "Professional Office" thing goes against Public Policy. And nothing in our Covenants says anything about Home Businesses.

I'm wondering if this is even legal.

Victor,

There is a legal principle that loosely translated means that by stating one thing all other things are excluded. In this case, the declaration allows two uses: residential and professional office. This would exclude all other uses. You cannot operate a zoo, sell pizzas, or repair cars for others at your home.

The term "home business" is a hard thing to nail down. You probably already have people in your community who sell stuff on eBay, make or take business phone calls, or work at home for their employers. Most of us have no problem with this kind of "business" use as long as the home is used primarily as a residence. My city does not consider those activities to be business use but they do bristle at putting up a sign and generating excessive amounts of traffic.

The person who asked for permission to run a home business was nuts. The association has no authority to grant such use and if the home business would not preclude residential use there is no reason to seek the board's permission.

JanetB2 (Colorado)
Posts: 4,219
Posted:
Quote:
Posted By LarryB13 on 03/27/2014 1:01 PM
The person who asked for permission to run a home business was nuts.

LOL ... I would not have asked.

Victor:

If your association is looking for ideas on verbage to address this type issue ... for my association our documents state:

No lot may be used for commercial purposes except for home occupations. For purposes of this Section X “home occupation” means an occupation conducted in accordance with City ordinances for home occupation that does not entail the employment of third persons on the premises. Any other commercial use shall be considered a nuisance within the meaning of Section X.

Essentially if you do not hire other persons for your business and in my area the City would not allow heavy traffic or signs as Larry pointed out earlier. There is really no viable way for an HOA to enforce this issue. However, I still understand why your Board of Directors is using the local code to define your current documents as they are lacking any definition within them. Remember the Board is just volunteers trying to fulfill their obligations.

TimB4 (Tennessee)
Posts: 21,059
Posted:
Victor,

As others have said, welcome to the forum. I am not an attorney and I do not work in the legal profession.

In general, an Association may be more restrictive than the County unless there is a Statute or State/County regulation that specifically controls. For example:
The County may allow fences 8 feet in height. The Association might limit fences to 4 feet. Since the 4 foot height is within the 8 foot limit, there is no conflict with the County regulation. However, if the Association allowed for 12 foot high fences, this rule would be in conflict with the County and the individual would need to comply with the County regulation on the height and be limited to 8 feet.

Typically, what an Association doesn't want is increased traffic in the development. Therefore, businesses that don't increase this traffic are typically authorized. Some businesses, with limitations, can't be banned.
As was said in an Attorneys newsletter on the subject: Unfortunately, there is no “one size fits all” approach to these issues, and any such policy should be reviewed by an attorney before implementation.

However, in 2013, the VA Property Owners Act was amended to address home based businesses. That statute defers control to the CC&Rs. Since your CC&Rs allow "professional office" use, it's possible that this amendment and the CC&R's language, the Association may have little recourse. Of course, testing this theory could be expensive for both the individual and the Association.

Perhaps you should encourage your Board to seek a legal opinion on the issue or, if they are adopting rules, to have the rule reviewed by an attorney for conflicts with existing statutes, codes and regulations.

Here is some more information:

VA § 55-513.2. Home-based businesses permitted; compliance with local ordinances. NOTE: This statute defers control to the CC&Rs. Therefore, if the restriction is within the CC&Rs, the business can be restricted. This statute just came out last year.

2013 Virginia Legislative Update Attorney's newsletter May 2013

Enforcing Your Community’s Covenants, Rules and Regulations Attorney newsletter January 2014

Home Businesses and “Residential Only” Covenants Attorney newsletter May 2001

Home Business Operations: How Does This Affect You? Attorney newsletter September 2008

Fairfax County HOME OCCUPATION PERMIT LIMITATIONS

Zoning Requirements - What Can I Do With My Property? Fairfax County Website (also includes links to applicable zoning codes)

Hope this helps,

Tim
TimB4 (Tennessee)
Posts: 21,059
Posted:
Victor,

It's sad to think this, but it could simply be that your Board is unaware of the changes to the VPOAA.
JanetB2 (Colorado)
Posts: 4,219
Posted:
Nice articles Tim ... They pretty much hit the nail on the head.

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