single-family residence definition

I just reviewed what authorities (HUD housing cases; law school professors; more) say is the status of the law. You are right: It is gray. But I think the strongest argument for not enforcing is precisely because the law on this is so gray and thoroughly unsettled in many states, including Indiana.Two observations on this point: First, whether this covenant and the County ordinance are lawful is not clear. A court may very well say the covenant and ordinance violate Fair Housing laws, either on account of prohibiting someone's occupancy on account of marital status, or possibly on account of "sexual orientation." (That is, prohibiting two or more unrelated people living together who are not having sex from occupying a "single family" house is unfair discrimination vis-a-vis allowing two or more unrelated people who are having sex could be unlawful discrimination on the basis of sex. So say the experts.) But a court might also rule the opposite. Second, the main argument in a lawsuit to try to force the HOA to enforce the covenant is that the board violated its lawful obligations. I think this argument would fall flat on its face. The phrase "business judgment rule" is tossed around a lot here. But it is worth your review. The "business judgment rule" is the main reason I think a court would not find the board liable for not enforcing this covenant. For example, see https://eadsmurraypugh.com/blog/the-business-judgment-rule-and-the-indiana-nonprofit-corporations-act-as-applied-to-board-members-of-an-indiana-homeowners-association-or-condominium-association/ .

I encourage your board to ask the HOA attorney what the chances are of the HOA prevailing in a lawsuit to enforce the covenant. First, if he says, 90+% or so, your board still can argue that this is too high a risk. Second, if he equivocates and says something like, "There is no telling what a trial court judge will do," then the board is on even firmer (financial loss) ground for not pursuing this. Third, ask him what are the chances of an appeal. I'd say an appeal by the losing side raises expenses by a factor of say, two. Fourth, including an appeal, ask him how long this would tie up the HOA and its resources. Fifth, ask him to estimate the cost of enforcing this covenant in court and through an appeal (possibly two or more levels of appeal).

I believe the board would be on solid legal ground if it refused to use the courts to enforce this, on account of the cost-benefit analysis indicating high cost, lots of risk, and little benefit to the HOA (in the board's estimation). A careful analysis is Thee Defense to a lawsuit brought by owners who are trying to force the HOA to enforce a covenant the Board feels is questionable in its lawfulness.

The County zoning people are wise. Your board could also send a letter and fine. But then, your board invites a lawsuit from the two couples.

Do not remove from your own personal reasoning that your HOA's attorney stands to make an enormous amount of money from a legal dispute in this instance. Frightening amounts of money as a matter of fact. He is not supposed to factor this into his thinking, but it absolutely does happen, especially in the dog-eat-dog world of attorneys vying for that fancy lifestyle they thought law school promised them.

Don't hesitate to find an attorney who disagrees with your HOA's current attorney. But I do not think this is necessary.

HOA owners are free to talk with the county and demand enforcement. But I believe legally, it's up to the HOA owners to figure this out. I think the board should vote in executive session (as this is a matter that could lead to litigation and involves discussions about the HOA attorney's advice to the board) and otherwise, respond to HOA owners demanding the HOA enforce the covenant with the words, "The board will not be enforcing the covenant." Nothing more. The board legally owes no explanation to HOA owners on this. In fact, giving an explanation jeopardizes the Board's position. Bear in mind: "Anything the Board says to the HOA owners can and will be used against the Board in litigation." Given the risk of HOA owners suing the HOA and board, the board should preserve as strong a legal position as possible by giving the HOA owners nothing the owners could use in a lawsuit.

Disgruntled HOA owners who find a good attorney will receive the advice that their quickest, least expensive recourse is to elect directors who feel as they do.

If I find any Indiana case law right on point, I will post links to same. But based on the County's response, I am not expecting to find any.

It might be helpful to focus on the property itself, not the people in it. Has the property been altered to accommodate multiple families? Separate entrances, kitchens, mailboxes?

Any attempt to define family has a high risk of being viewed as discriminatory.

I can't imagine what neighbors would be complaining about or why they even care so much about who lives inside the house.

very helpful insight, thank you AugustinD!

I'm trying to figure out what the problem is - I'm less concerned about two married couples living in the house, and more concerned if something else is going on, such as too much trash and noise. If you have CCRs addressing that, the Board should focus on THOSE violations. Unless it appears they're running some sort of brothel or are stacking hundreds of people in the house, it seems to me it's no one's business what the relationship is between the two couples.

(that said, I do wonder why the WIVES aren't on the deed....)

I agree, it is no one's business.

I agree. A single family home is the type of structure not a a regulation of who lives there.