Amendment Question

I’m new to this board. I live in New Castle DE and a homeowner wants to have a large family daycare in their home but it’s not allowed in the governing documents. I read there is process for a special meeting and this person has already gone around with a petition and eventually will need a 75% yes vote to get it amended. My question if voted on and it’s in their favor can costs be absorbed by the homeowner, example lawyer/filling fees with the county?

Thank You
Paul

PaulC20, respectfully, I think you (or the board) is way ahead of yourself (or itself). Amending is an enormous legal process. Amending does not happen by a casual vote at a meeting. Folks need to be given proper notice. Documentation of the vote must be very formal and overseen by an attorney as far as I am concerned. Amendment certainly does not happen by a mere petition that some owner put together, without giving attention to what the governing documents require for voting on an amendment.

If the board does not like this proposal, then use HOA resources to get the word out to oppose this movement. If this owner is not following proper procedure, the board should not move a muscle to assist her/him. Instead, if the owner appears to have enough signatures but has not followed the proper procedure, explain that the board rejects the amendment because it fails to comply with the procedure.

If per chance down the road the proper procedure for amending is followed, and enough owners vote for the amendment, then the owners have spoken, and of course the HOA should pay for recording and legal fees, passing these expenses along to all owners by way of a higher assessment in the near future or a special assessment.

Your association's attorney is your friend. First be sure that your CC&Rs need to be amended - it may be that state law overrides your CC&Rs, making any amendment unnecessary and efforts to oppose this useless.

Re-iterating what Augustin said, there are legal procedures to be followed in order to enact an amendment, so be sure you know what they are in your state. CC&Rs shouldn't be amended on a whim, for good reason, so the barriers tend to be high, such as requiring approval by a super-majority of owners (ALL owners, not just those who show up a meeting and talk the loudest).

The actual text of the amendment needs to be drafted by a lawyer so that it is written in proper legalese and so that it complies with state law and the rest of your CC&Rs. Taking short cuts to save a few bucks can set the stage for future legal wrangling or even result in the amendment being shot down in court.

While you're doing research on this, be sure to check with the HOA's insurer to see what the implications are of having a day care in the community. I'm assuming it means increased liability for the HOA which will probably mean increased premiums and assessments. Oh, and you may want to think about possibly amending your CC&Rs to prohibit Tier 2 and Tier 3 sexual offenders from living in your community - we did that on the advice of our attorney, again to limit the association's liability in case one of these offenders moved in.

Also consider traffic patterns and parking issues that will be affected if you have a bunch of people coming and going. (The local schools send buses to pick up and deliver kids at the day care center adjacent to my community.) Check local zoning laws, you may need to get a variance.

As should be obvious, a day care center can be disruptive to the folks living nearby. The people who run them tend to reap the benefits themselves while transferring many of the associated costs onto the surrounding areas. This should be made clear to the community before a vote is taken, and depending on the demographics of your community it may be enough to prevent amending your CC&Rs.

Everyone,

Thank you for your replies and I appreciate everyone’s time.

I was asked a number a questions so I will go into more detail.
I live in a single family home community. The developer has not fully turned over the community to the Association. I would say 3 open space areas are left. Approximately 175 units. I’m neither on the board nor on a Committee.

The person in question placed trees in the common area that has yet to be turned over; our chair of the Landscaping Committee was alerted of this. Research was done and it was brought to light that this person filled for a daycare with the county. In 2020 it was to operate a small childcare in home. In 2021 an updated filling is now for a Large Family Daycare. I recall one of the documents from the county specifically says “refer to your HOA government documents”

Our documents say no, but all the work inside the home has been completed and fees to the county paid, also there is enrollment to this daycare stated in the petition. No Arch request was ever submitted which if it was it should be rejected.

Bottom Line: This person was flat out caught and really never expected anyone to find out. In the petition this person claims not to know of this rule. Last time I checked don’t you sign off at closing that you read the governing documents and you agree to them? Currently a rule has been broken, claims not to know of this rule, now wants to go around to get it amended and wants to pay for it all, so no homeowner or I believe the HOA absorbs any costs what so ever.

Paul

Furthermore, as long as the covenants are recorded with the county clerk, then the courts say that this recording is "legal notice" to the world, and all have been duly notified of the covenants, including any covenant prohibiting a day care business.This owner who wants the daycare business can say just about whatever she wants about this proposed amendment, including that it won't cost other owners a dime as far as the costs of amending are concerned. As has been mentioned, I would be far more homed in on whether she is following the steps required to amend. Typically it takes a year or so to complete all the steps. Even if this owner has the votes, I think it is unlikely amendment will be completed anytime soon.

I think that if there are enough votes to change the governing documents then the HOA should pay the filing and legal fees. After all, the association is making the amendment. The one homeowner is just setting the process into motion. If 75% of the owners want the change then presumably they think it is good for the entire association.

It is probably a moot point. Unless you have a very small association it is unlikely you will get 75% of the owners to vote, much less vote affirmatively.

Paul

As Ben said:

It is probably a moot point. Unless you have a very small association it is unlikely you will get 75% of the owners to vote, much less vote affirmatively.

I agree.

Max,

The below is form DELACARE Regulations for Family and Large Family Child Care Homes

"Large family provider" means the staff member responsible for the total program
including providing child care and, when applicable, managing the administrative
aspects of a large family child care home. This staff member may supervise large
family assistants, large family aides, and substitutes and meets the qualifications listed
in these regulations.

I don't have any updates on this matter as of yet, I still like to thank you and everyone else for replying.

Enjoy your Labor Day.

Paul