Day Care operations

You might try checking with whoever issues business permits in your area. I know in Indiana, there are certain state and, I believe, local requirements for day care centers, depending on the type being run. For example, if the center is designated for infant care, there's a limit on how many babies can be enrolled at a time. There may also be rules regarding how the building is set up (e.g. a minimum number of restrooms.

If the homes aren't configurated for that, this could be a way to write a rule limiting them (according to the process your CCRs have laid out).

Also check with local authorities on insurance requirements - if this homeowner doesn't have what's necessary, maybe the city or county could step in and compel him/her to do so

not to nit pick too much Michele, but do your rules really allow no businesses to be operated, or just some business?

WE had a similar rule: "No businesses may be operated from or within the home." However, we couldn't enforce it very well, because we had a hard time enforcing it fairly/as written. We could try to stop someone who operated a day care, and they would question why we never went after the neighbors who did web design, or the couple who sold antiques on ebay, etc..

As to the original question: I could be wrong, but i can think of no laws that would stop an HOA from properly implementing such a ban on home based day care, (if done correctly, legally, etc.). There is no inherent right to day care in the law, i believe.

Brian, that is truly nitpicking and it doesn't really apply.

We don't have to police each and every person's home for whether they are running accounting services or call centers.

We do have a duty, however, to investigate and enforce against each and every complaint we get.

If a business is operating within a home to the extent that the increased traffic and/or parking or external indications of a business, such as a sign, or similar, becomes evident within the neighbor to a casual viewer, then we can, and have successfully, enforced against it.

Even the homeowner's own attorney in this case didn't go that route, "but you didn't/haven't enforced against other businesses . . .yada yada yada"

Why didn't they?

First because it's an extremely weak defense.

Because we, in fact, HAVE enforced against any home-based business that has created enough visibility to make the neighbors aware that it existed.

And it doesn't even have to be a "nuisance," because our CC&Rs don't say "not allowed, except if they don't become a nuisance."

We had another homeowner try to run a Landscaping company out of his home. How did we know about it?

He parked 2.5 ton trucks in his drive full of mulch and he stored 15 or more wheelbarrows on his front porch.

We had another owner try to run a Yard Sale business out of her home. How did we know? She had yard sales every weekend.

A judge determined that yard sales occasionally do not rise to the level of running a business. Having one every weekend does, even if it shows a loss, which she claimed hers did.

I'm pretty tired of HOAs failing to enforce valid, enforceable CC&Rs because they cower to the mere implication that someone will question obscure and tenuous connections. If you've got spotty, inconsistent enforcement of ANY CC&R, then you'll have trouble, regardless of which on you suddenly try to enforce against. But not doing so because someone might claim that an Unknown Jonny Doe MIGHT be doing accounting work from a room in his home he refers to as his "office," is just silly.

Is a couple running an antique business on ebay? Really? Can you prove that they are? I can't. I can, however, prove that you have 10 to 12 cars come to your house in the morning and in the evening every weekday and drop kids off at your house. I can also prove that you are listed in the State Database as a Home-based Day Care Center, complete with certification dates. And the file also shows that you re-certify EVERY year.

I can also prove that you advertise in local print media as XXXXX Christian Day Care center, complete with name, phone number and address.

Where is the "unfair" aspect?

How hard was that to enforce?

Just saying. . .

Better watch out Brian, just because your book didn't sell doesn't mean it isn't a business, afterall, Michele's yard sale lady didn't make a profit but apparently was still a business!

Kidding aside, I'm with you on the flawed argument about something is a business if it increases traffic or is somehow noticeable in a HOA vs a web designer/call centre or whatever that isn't noticeable....UNLESS the CCR's differentiate and say something other than 'no home based business' to distinguish only ones that can be noticed or have an impact. It may be harder for Michele to determine whether a business exists but it doesn't mean she wouldn't have to go thru the motions if someone made the complaint....unless she wants to open up a claim of selective enforcment.

Ours simply states:

Section 8. Business: Home Occupations. No trade or business of any kind (and no practice of medicine, dentistry, chiropody, osteopathy and other like endeavors) shall be conducted on any lot, nor shall anything be done thereon which may become a nuisance to the neighborhood. Notwithstanding the provisions hereof or of Section 1 of the Article II, a new house may be used by a builder thereon as a model home for display or for the builders own office provided said use terminates within eighteen months from the completion of the house or such additional period of time as may be expressly agreed to in writing by Developer.

Now, again, I don't know how many times I can state this, we do NOT police the neighborhood.

We do, however, pursue enforcement against any notification that we can subsequently verify and substantiate.

If UPS or FedEx shows up a couple times a day to a house, and it's just coming to John Doe, we cannot verify/prove he is running a home business, IF we get a complaint about him.

However, IF the UPS FedEx guy leaves them with neighbors and it's address to Joe's Candle shop, then we can AND WILL require that he cease operations IF WE'VE RECEIVED A COMPLAINT ABOUT HIM.

I only mentioned the size of the Mulch truck because I couldn't believe he would be so stupid as to leave the truck there. It just made our job of verifying that a business was being run out of the house ONCE WE GOT THE NOTIFICATION for a neighbor that it was happening.

The Weekly Yard Sale is clearly a business, at least a judge felt so and made the distinction between someone getting rid of junk once or twice a year and someone setting up a permanent "store front" by selling junk out of the house every weekend.

We could very easily look someone in the eye, with no degree of qualm whatsoever, if they say, "Why are you going after me and not so-and-so?"

We get that same comment on 90% of the notices of violation we send out on almost every infraction of the CC&Rs.

To which we ALWAYS reply, "If you believe So-and-So is doing XXXXX, then please submit a formal notification and we'd be happy to pursue it."

We don't sweat it in the least, and we don't let it intimidate us from enforcing against the violations we CAN prove.

Oh, and the day care center was also advertising online at local craigslist-type sites, so, yes, any advertising would have further supplemented our proof, so of course we would use it.

In fact, funny story, when we first heard that she was running a day care we sent her a letter requesting that she cease operations.

She called our president and cried and cried, "Why would some one tell us that? She's just watching some kids for her friends who need help FREE OF CHARGE! She swore up and down she was just being a "good neighbor" and was not running a day care."

The Prez gave her the benefit of the doubt.

A week later, another board member was looking for some nearby day cares because she wanted to start leaving her son in a Parent's Day Out program.

She searched the local Day Care Database that is maintained by a clearing house type place that reviews centers to make sure they are safe and comply with all local laws, etc.

Lo and behold, up pops the address and the resident's name beside the XXXXX Christian Day Care. With a little ad explaining how long they have been in operation. "Providing quality in-home child care since 2003." The only way you can get on that database is to provide your certification as a valid operating child care center from the commonwealth of Kentucky.

While we're getting a little off from John's original question and I think Michele's HOA is taking the right tact on enforcing when there is a complaint. Mary while I applaud your common sense approach do you just apply it here? What about other sections of your documents are they open to common sense or do you enforce to the letter? What may be "common sense" to you or me is not necessarily "common sense" to anyone else. Either enforce it or change it. Our documents which were written in 1992 before telecommuting was popular still work for us:

The restriction above to the use of any unit as a single residence shall not prohibit the conduct of a “home occupation” or profession carried on by residents permitted to reside on the premises under Section 7.1 of this Declaration and in connection with which (a) there is used no sign or display that will indicate from the exterior that the building is being utilized in whole or in part
for any purpose other than that of a residential dwelling, (b) there is no commodity sold, or service dispensed upon the premises, (c) no person is employed other than residents permitted to reside in the unit under Section 7.1.A (1) above, and (d) no mechanical or electrical equipment is used except such as is permissible for and is customarily found in purely domestic or household
premises for the family residing therein. A professional person may use his residence for infrequent consultation, emergency treatment, or performance of occasional or emergency religious rites, but not for the general practice of his profession. Permitted home occupations shall not include barber shops, beauty shops, shoe or hat repair shops, tailoring shops or any type of pick-up station or similar commercial activities but the recitation of these particular
exclusions shall not be deemed to constitute authorization for conduct of other businesses or enterprises which are precluded by this or other sections of this Declaration.

for the record, i like Michele's approach too: the rule has a "nuisance clause" which allows some decision making and leniency (whereas ours simply said "none". I also believe emphatically in her other comments regarding answering a complaint versus sticking a nose into the situation out of curiosity, reminding complainers that if they want action, they need to follow the process, etc.. That's the way it SHOULD be handled. I think they are 99.99999% dead on!

and FYI, my novel can't be a business, it had zero income. I think you have to have some income to be a business. I could be wrong, and eagerly await someone to show me a business model without income.

Brian, income isn't necessary, just that the expectation was to have income. Did you write the book with the expectation? Where can I get a copy.

Kathy, Does it eliminate day-cares? So as long as I go pickup the customers kids (the kids aren't the customer) outside the hoa my daycare would be ok. They aren't 'walk-in customers'. Guess a dog sitting business would also be ok so long as I pickup and deliver them back to my customer?

So, would the reverse be true?

If i operated a day care in an HOA, but didn't charge for it, could it exist? All the traffic, all the kids, but no money/income occurs, then the "home based business" rule would not apply, correct?

Glen,

Your "home occupation" restriction is rather comprehensive. Many are not as detailed leaving the board no other recourse but to interpret. This is where common sense comes into play. However, I do not advocate the board changing the intent of a restriction in their quest to interpret or to use common sense to rule. And, while it's fine to say "either enforce it or change it", that isn't always a practical solution. We all know how hard it is to get the required number of votes to amend the CCRs!