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Started by BillN4 • 24 replies • 980 views

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BillN4 (Colorado)
Posts: 1

Posted:

My wife and I opened an in home daycare in January 2016. We followed all the rules set forth by the state and city regarding licensing. One of the requirements was to send letters to neighbors within 300 feet of our home and the property management company informing them of our intent. The letter stated that if there were any objections the respond within 15 days. the time passed and no objections were filled. The city sent a letter to the same people and the property management company informing them that a business license was going to be issued and if there were any objections they must file an appeal with the city within 7 days. no appeals were filed by the deadline and a license was issued. now, almost 2 years later the HOA board wants to shut us down for being in violation of the covenants which state that in home business can not increase traffic flow. What is our recourse? we have been in operation for 2 years, at least 3 of the board members walk by our house weekly and see the kids playing in the yard.

RoyalpitA
Posts: 195

Posted:

Comply with your deed restrictions (CCRs)

or

move.

RoyalpitA
Posts: 195

Posted:

ps.

for any further advice an attorney is recommended

one versed in real estate, contract, and HOA law

else, as many fools attempt, you may represent yourself

AND

pay for the HOA's legal fees as well as your own WHEN YOU ARE FORCED TO COMPLY

GenoS (Florida)
Posts: 4,276

Posted:

Quote:

Posted By RoyalpitA on 10/24/2018 7:23 PM
Comply with your deed restrictions (CCRs)

or

move.

This is the right answer. Sorry, Bill, your association's CC&Rs can be more restrictive than the local laws and ordinances.

MelissaP1 (Alabama)
Posts: 13,836

Posted:

The question is what did the letter say originally? Maybe the question wasn't asked the right way originally? Meaning you may have asked permission but was it in a way that wouldn't raise red flags? That is the possibility here. The HOA may not have realized the scope/range of your planned home business. It could have read to them as "I have a babysitting job".

Which babysitting a couple of kids is way different than running a daycare. A daycare is one of those businesses that one does put a "shingle up". A babysitting job isn't. HOA's are not against home businesses like Tupperware or stock trading etc... They are not for those businesses like Doctor's offices or Car repairs etc...

You may need to move the business out of the house or low scale it. The IRS may be contacted by the HOA if they really don't like your business. Just an issue to be aware of.

Former HOA President

DouglasK1 (Florida)
Posts: 2,046

Posted:

As Geno said, the HOA restrictions are separate from any approval required by local governments, and still apply. Since the association has waited two years to enforce there might be some legal defenses such as statute of limitations or laches, but you really need a lawyer to review your association governing docs and let you know what your options are based on formal and case law in your area.

Escaped former treasurer and director of a self managed association.

MaureenM1 (PA)
Posts: 344

Posted:

You purchased into an hoa with CCR,s that you agreed to abide by. If you don’t want to abide move. Plain and simple.
We had a limo business in our hoa that we had to fight to stop once we got the zoning officer involved and they were told to register their business or be fined they moved. They knew if they registered their business the board would come after them because our CCRs restricted home businesses.

BarbaraT1 (Texas)
Posts: 821

Posted:

You should talk to a lawyer with experience with HOAs and have him read your docs. I have had homeowners successfully prevail in situations where the board knew of a violation and took no enforcement action for a very long time. But that may be unique to those communities or to my state.

AugustinD
Posts: 5,144

Posted:

BillN4, you asked what your recourse is. You can respond to the HOA's letters saying the HOA was properly notified that the daycare center was going to be established and did nothing for two years; please make an exception. Meanwhile, your wife and you built a business and depend on it for income. If the HOA persists, fining you and possibly taking you to court, then I think the situation is not black and white. You might prevail; you might not. But for sure this will cost a great deal in attorney's fees.

Do you know of others in your HOA running businesses from their home that increase traffic flow?

If I were a new director on your HOA board and the board just noticed your business and the traffic flow, I think I would do as your HOA's board is doing. This would be for the sake of the HOA. People who live in your HOA relied on the covenants about no increased traffic flow from a home business. I would want to support them. I would ask the board to apologize to you for the two year lapse in time, trying to keep things polite. If you dug in, would I vote to have the HOA attorney ultimately take you to court? I think I would.

RoyalpitA
Posts: 195

Posted:

Y'all are sooooo polite.

however

the following STILL applies and is accurate:

Quote:

Posted By RoyalpitA on 10/24/2018 7:23 PM
Comply with your deed restrictions (CCRs)

or

move.

RichardP13 (California)
Posts: 3,868

Posted:

I believe posters here need to check state statues before making the response they are. This is a day care. While generally increased traffic flow on a home business is a red flag, day care have exempts from individual states, California being one. Also Colorado is a liberal leaning state. All one needs to do is a google search on day cares in HOA's for answers.

TimM11
Posts: 354

Posted:

Well, there are things you could try, but they're not guaranteed to work. One would be to talk to the city again about their prior notification to the PMC. They probably can't make the board reverse course, given what the covenants say, but they may be able to put the squeeze on them a little bit and make the board think twice. Or the city might not care at all. Wouldn't hurt to at least talk to them, though.

Then of course there's going to local media, who tend to love stories like this (it can be spun as anti-property rights, anti-children, or anti-small biz, depending on the audience). Maybe your customers could help here too. I wouldn't do that unless you really felt backed into a corner, though. Plus there is no guarantee that would make the board reconsider either.

Personally? I think the board/PMC should have responded when they were originally notified about this rather than letting it go on for so long.

LetA (Nevada)
Posts: 2,679

Posted:

Quote:

Posted By RichardP13 on 10/25/2018 11:11 AM
I believe posters here need to check state statues before making the response they are. This is a day care. While generally increased traffic flow on a home business is a red flag, day care have exempts from individual states, California being one. Also Colorado is a liberal leaning state. All one needs to do is a google search on day cares in HOA's for answers.

We had sommeren run a daycare in their home in the HOA I live in. It went from a nuisance to an intrusion when this particular renter started using the community amenities to run their commercial business. I totally agree with PITA on this. You are in violation of a contract that you agreed to abide by, not good. I suggest you move or rent a commercial store front somewhere and run a daycare operation there.

RichardP13 (California)
Posts: 3,868

Posted:

Quote:

Posted By LetA on 10/25/2018 11:36 AM

Because they involve children, they have to report to certain agencies.

Report them if they are overstepping their boundaries!

RoyalpitA
Posts: 195

Posted:

meter at 100% - time to exit this thread

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

Posted By RichardP13 on 10/25/2018 11:11 AM
I believe posters here need to check state statues before making the response they are. This is a day care.

Well Colorado allows you to watch up to 4 children that are not yours at a home as a business. The HOA does not.

What will typically happen is if you dont stop the HOA will take you to court, the court usually sides with the HOA because its contract law and this particular contract you agreed to says no businesses. You will have a very large legal bill, proubably $10k or so, and the court will also tell you to pay the HOA legal bill which could be $50k because they are using corporate lawyers, not personal lawyers.

Can you work something out with the HOA without involving lawyers? Unlikely, but maybe.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Unfortunately, the city or state licensing has nothing to do with the rules of your HOA. They would have no idea of the existence, nor rules of your HOA nor care before issuing a license.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

The more I think of it, the more I wouldn't want a day care in my HOA either.

Lets say 10 kids.

Parents droping off - 10 extra cars going through neighborhood
Parents picking up - 10 extra cars going through neighborhood
2 employees going to work- 2 extra cars going through neighborhood
2 employees leaving work- 2 extra cars going through neighborhood
Amazon deliveries drop off - 1 extra truck
Amazon delivery leaving - 1 extra truck

Potentially 26 extra cars driving through each day! Just for your house.

People move to an HOA to have quiet streets that their kids can ride bikes on, walk the dogs, etc. Its not fair to others for you to break the rules and other home owners to deal with the increased traffic and danger.

Want a day care? Move to a non-hoa house, where the city permits it and your free to do as you please. Sure day care is needed, just not in your HOA.

GlenM4 (Tennessee)
Posts: 141

Posted:

ask for proof of the increase in traffic, you been doing this for 2 years and now its all of a sudden increased?? I would consult a lawyer, if it had been just a few months then i agree you should stop. but 2 years?

GeorgeS21 (Florida)
Posts: 3,808

Posted:

If I were on the BoD, I would hold everyone to the CCR standards - unless the state allows otherwise.

I would not want businesses of any kind (other than folks working in their home offices) that increase traffic or consistently bring outsiders into the neighborhood.

You would get the required warnings, then following all CCRs, county and state procedure, we’d be off to court.

JenniferG11 (Texas)
Posts: 667

Posted:

I dunno. I think the notice sent to the PM is a game changer. They chose not to object at that time, but of course I agree an attorney is needed.

RoyalpitA
Posts: 195

Posted:

It all depends on COLORADO's 'time frame' re: doctrine of laches.

Next step would be competent legal advice.

SteveM9 (Massachusetts)
Posts: 3,699

Posted:

Quote:

Posted By JenniferG11 on 10/31/2018 2:27 AM
I dunno. I think the notice sent to the PM is a game changer. They chose not to object at that time,.....

If no reponse within 7 days, I'm changing my house into a methadone clinic and rooming house for sex offenders. Guess no one replied.... im legal!

LOL. HOA contract law doenst work that way.

JanetB2 (Colorado)
Posts: 4,219

Posted:

No recourse if they are willing to take you to court. In a court battle you potentially will loose ... so you need to determine how far the HOA may be willing to go in their pursuit. As you have noted your CCR’s do not allow and which were in effect when you purchased and prior to your business.

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