home office

our bi-laws prohibit the use of any unit for commercial activities of any character. if i have a home office in my unit. i work in another state 4 days of the week. i do bring work home with me, i am a archetect. am i violating this bi-law? i do not advertise my business, nor do i do business in this state.

Richard,

I too would have to be of the same opinion with Harold. They couldn’t possible know you are doing business out of your home office or what your doing in it. It isn’t like you are generating an unnecessary amount of traffic into your home. That is what this by-law is attempting to avoid!

Chuck W.

I am not an attorney so this is not legal advice.

The answer to the question may depend upon the wording in the CC&Rs for your CID. My reading of the literature is that "for residential purposes" is generally given a broad meaning by the courts and allows home business as long as there are no external commercial activities: signs, vehicles parked, vehicles coming and going, no parking of commercial vehicles, etc. If the residence has the look and feel of a residence, it is a residence even though busines may be done within.

Brad, to answer your two questions:

Who will know/Who will nitpick it? Everyone, trust me. Especially the neighbor who is getting violation letters about his lawn, landscape, cars, etc. that guy will make it a mission to find out who else in the HOA is "breaking a rule" and getting away with it. If you ever talk to a neighbor about your life, your work, etc., invite them into your home (oh, excuse the mess here, I am swamped with tax season work), etc., then everyone knows you work from home.

the problem neighbor will turn you in, and sit back and refuse to deal with his issues until the board deals with your home business.

there's one in every neighborhood.

Check with your local ordinances City, County as well for restrictions on home businesses. Of course, if the business is illegal, such as operating without a business license or other proper licensing, any statute--Federal, state or local--would take precedence over any community documents. What needs to be determined is what was the developer/declarant's intent in the recorded documents as far as "commercial activity" is concerned? Has your community ever enforced this "rule" before, as in "past precedence" and if so, did they issue a fine and/or a cease and desist order? In my opinion, I think the usual idea and intent of a developer would be: not have excessive traffic on your community streets, no blocking or using your neighbors' available parking spaces, "outsiders" coming in and out of the community, large commercial vehicles, like landscape trucks carrying debris that may end up in the community, dust from cement trucks, the weight of heavy vehicles on association paid for streets when they were not designed for nor budgeted in the reserves to maintain that kind of traffic, or having a day care with kids being dropped off and picked up or end up outside if unsupervised, this could pose a potentially serious liability issue. Talk to your insurance agent and your association's insurance agent. Depending on the type of business activity, what to consider is, would this activity impose a health, welfare or safety issue or create any kind of liability to yourself, your business, on your own homeowner's or business policy or the community's policy? I disagree with the "what they don't know won't hurt you" and "if you don't get caught" attitude. Be reasonable as another person in a like position would act. If no harm, no foul, one would think there would be no problem. Unless someone complains. There's one in every neighborhood that has little else to do except find fault in others. It is unfortunate many legal association documents aren't written in plain explicit language. Read them carefully.

The inside of your home IS SACRED...period.

If you have no outward signs of doing work in the privacy of your home, as mentioned by others above, it is none of anyone's business what you do inside your home.

If an HOA can govern you INSIDE the privacy of your home, then they have way too much power and way too much time on their hands! Besides, it's unconstitutional for them to even attempt it unless you are manufacturing illegal drugs or conducting some other "illegal" activity. If it's "legal"...they have no say. Period.

Brian has a good point. However, in this case the key word is commericial. What constitutes commercial activity? I am not the smartest tool in the shed but I would argue that doing work for my job in my house while not bothering someone is not a commercial activity.

Claude, I am curious as to the logic used to regulate the number of pets inside my home, but that same logic cannot be used to regulate the business(es) i run from inside my home.

Why is it HOA business that I have three dogs and six cats inside my home, but not their business that I have a home office? Aren't both "inside my castle"?

Any thoughts?

Claude,

Well worded, my thoughts exactly! I couldn’t have said it any better.
Good post.

I too believe that many of the rules and regulation stated in most CC&Rs are very vague and left open for interpretation.

That’s just my opinion though.
Chuck W.

The solution when deciding what rules to enforce is to use sound business judgement. Don't try to enforce a rule which would have no legal standing. If you can't see, hear, smell, nor are otherwise affected then do you think 'no home business' would be legally enforced by a judge? And would any Board member of sound mind want to spend thousands to find out?

my concern is this:

If i have a rule that states "No X", and we don't enforce it, how can we defend the enforcement of any other rule that states "No Y"... isn't the non enforcement of a rule pretty damning evidence to a judge that the HOA is selectively enforcing it's rules and regs?

There's another thread that references a woman being fined for leaving ice chests in her driveway, while other owners are leaving picnic tables in their driveway without fines. How can a board hope to enforce some rules, and ingore others?

How can I, as a board member, fine Owner #1 for weeds in his lawn, but I won't fine Owner #2 for running a home based business from his home, when both are against the rules? Keep in mind, the rules say nothing about "visible to others", they say "no home businesses".

I believe that a board needs to look at the intent of a rule such as no home based businesses, as well as the current times.

Millions of people today have home based businessess such as internet sales, and if they didn't tell anyone, no one would know their business exists. Also, may people do their work at home instead of going to the office. I believe that's called telecommuting. They are in effect running a portion of a business out of their home, but it is invisible to the community.

On the other hand a contractor may have a home based business and store material in the garage and have workers in trucks come twice a day to pick up material get work orders, and return with reports at the end of the day. That is a blatant violation because it creates excess trafic on privately maintained streets, and in some cases may create excessive noise.

In our community there is a no-business covenent. Before buying our home I spoke with the in-house property manager about this because I have an internet business. She told me that as long as I did not create extra traffic on the private streets there would be no problem, because there are many home based business in the 2000 home community.

I load my car with any packages to be mailed while it is in the garage so it is not visible to the neighbors and go to the post office or Fed Ex about 3 times a week. Because I like to save gas, I combine those trips with other home type chores.

Occassionally I have a UPS or Fed Ex delivery, and they are in our area each day anyway. I do not do any direct sales out of my home. No one is allowed to come here and pick up anything that they ordered from the web site.

So my business is virtually invisible, and that is the way I like it anyway, and it also complies with the "intent" of the covenent.

Brian,

I have no answer that you want to hear or that you will understand, obviously. Equating boats in a driveway with someone working at a computer in a home office is ludicrous, and frankly, nit picky.
We'll just agree to disagree since the scenarios that you pose are the same rationale that our resident "HOA rebel, libertine board buster" uses. Our fellow would argue that the sky is green and the grass is blue!
This is an information/help board, not one of those where members get into pi$$ing contests so I'm withdrawing from this thread. Good luck!
And may I recommend on my way out that you find a nice NON-HOA community to live in, and if not, please, please do not serve on any BOD's. Spare your neighbors the grief.
:-) :-) No hard feelings...ok?

One last post:

Brian, you have my sincerest sympathies! Peace brother!
:-)

I believe when we look at the CC&R's we must consider several things.

1. The letter of the covenent
2. The intent of the covenent
3. Does the covenent require clarification
4. Is is clarified in the Rules and Regulations
5. Is it an outdated rule, not consistent with todays world
6. Would a judge consider the covent reasonable.

Examine these two covenents using those 5 elements:

1. No parking on the street
2. No home based businesses

No parking on the street.

The letter of the covenent is quite clear, there is to be no parking on the streets. That means homeowners, guests, landscapers, house cleaners, window washers, and any other domestic help.

The intent is most likely to keep the streets clear for child safety, street cleaners, emergency vehicle passage, and possibly minimize some wear and tear on the streets.

Clarification: Yes some clarification is required, because it is impossible to expect landscapers with their trailers to not park on the streets. Also, if the homeowner is parking in the driveway there is no space for maids and other domestic help to park off the street. And it could force owners to allow people with bad oil leaks to park on their driveway. If one has a party with 10 guest cars in attendance, they can't all fit in a driveway. They're going to park on the street.

The rule is not outdated, but does require clarification.

A judge would most likely find the covenent reasonable, unless the HOA tried to fine an owner for their guests or domestic help parking in the street.

Therefore, it is impossible to enforce that covenent by the "letter" of the rule. It can only be enforced by the "intent", which must be reasonable. What the HOA finds reaonable doesn't count in court. In court, it's what the judge finds reasonable that counts. Any attorney will make that statement.

No home based businesses

The "letter" of the covenent is clear, that no one shall have home based business.

The "intent" of the covenent in most cases, is to prevent a visible commercial business from operating in a residential area, and to prevent excess traffic and noise on the privately maintained streets. A masonry contractor who has four trucks arriving in the morning and late afternoon is creating extra traffic and extra wear and tear on the streets. It is also creating extra noise, by loading and unloading vehicles, and possibly with the workers playing loud radios like they do on their construction sites.

Their vehicles will not fit in the driveways of the homeowner so they will be parking on the streets, a clear violation of the no parking covenent, because they are not even supposed to be in the community.

Does the covenent require clarification? Yes it does. And the Rules and Regulations is the place to clarify. One cannot add to or subtract from the covenent in the CC&R's, but it certainly can be clarified.

The Rule should state that the purpose of the rule is to maintain peace and quite in the community and to prevent excess traffic on the streets, and any appearance of a commercial business being operated from a home.

It can also state that a business that is operated only with the home owners, such as a home consulting business with no clients visiting the home, with no employees that come to, or work in the home, or an internet sales business where no sales are picked up by buyers at the residence, and which is invisible to all neighbors, so that no one would know by outword appearances that there is a home based business, does not violate the intent of the covenent.

The "letter" of this "no home based business" rule is outdated, and not consistent with todays world. In most cases it was written prior to the large influx of home based computer operated businesses that are invisible to the community. Ours was written 20 years ago when it would take an air cooled room with two computer techs to maintain the equivalent of the desk top computer many of us have in our office today.

I have an internet business and there are only two neighbors on my steet that know it exists, and that is because they are friends that I have discussed it with. I don't want people to know about my business.

My next door neighbor has an Information Technology Consulting business. He runs it from his home office, on his computer and telephone. I only know about it because he told me. There is never any traffic to his home.

Another neighbor a block away runs a Medical Billing Service. It is a full time job and is how she makes her living. It is all done on her computer and telephone. Most of her clients are in another state where she moved from. Only her friends know that she runs a business from her home because there is no traffic.

Another is a CPA who works full time from her home, and does not generate any traffic.

Another runs a catering business from her home. She has a storage facility a few miles away where her catering supplies are stored, and where her staff meets. But the operation is run from her home computer and telephone, without any traffic to her home.

Would a judge consider the "no home business" covent reasonable? If an HOA attempted to fine either myself or the other residents for running an invisible home based business, I believe any judge would say that it is unreasonable.

A BOD can make policies and variances for specific things such as invisible home based businesses, and can clarify them in the Rules and Regulations until such time as the CC&R can be amended to change the "letter" of the covenent to be in line with the "intent", and today's virtual world of telecommuting and home based invisible businesses.

As I mentioned before, our 2000 home community with an excellent BOD and a professional in-house property manager and staff, have stated verbally that as long as a business does not generate extra traffic and noise, that it is permited, notwithstanding that the "letter" of the CC&R states "no home based businesses". Before I bought my house here, I got that clarification because it concerned me. Fortunately, this professional manager, and the BOD understood the intent of the covenent, and are enforcing it accordingly.

I'm on the BOD of a sub community of this larger master community. Our CC&R's can be more restrictive than the master, but not less restrictive. Most of ours are actually in line with the master.

Our sub community BOD works to enforce our covenents evenly and fairly, and in doing so we respect the "intent" of the no home based business covent, and we believe it would hold up in court if we were to fine a visible business that was creating extra traffic and noise on the streets we have to maintain, and did not fine an invisible business. In fact, how would we know that an invisible business exists? As president of our BOD, I am still required to comply with our CC&R's, and I do. Is the BOD going to come into my house to see if I have an in house business that has no ourward appearance? Is the BOD going to go into my neighbors house and check his computer to see if he has a business operating on there? Of course not because that would be both illegal, and unreasonable.

William, i agree with your post with only one difference in opinion...

I totally agree that we should enforce the Intent of the rules as much as possible. However, we can only do that when the intent is known. I love the fact that you advise using the rules, or other official documents to explain the intent, because i totally agree with you... If i know the intent, i can read the rule, apply the intent, and move forward, just like you say to.

however, when intent is NOT known, how can we adjudicate it? For example, the rule says "NO".. one claim you made is "well, the intent was to do this...". I would ask, how do you know what the intent was of the original drafters of the rule? What gives theory A of intent more evidence than theory B? I guess then we can go to "reasonableness", but that is different than intent (ie, there is no guarantee that the intent was to be reasonable)

For example, "no more than 3 pets" is the rule... what was the intent? To limit the number of pets? What pets? cats? dogs? goldfish? crickets? How do we know what the original drafters intended when they said those words? Someone could say "they intended no more than three big dogs running around outside", while someone else could say "they meant no more than three types of animals", while a third thinks the intent was speaking only of animals outside, and his 15 birds in cages inside is quite acceptable...

My point is, in the absence of documented explanations and intent, one person's guess as to the intent of the "no business" rule is just as much as guess as any other person's, and so, when you cannot determine intent, you must stick to the rule as written.

I wish more HOA's had taken the time to state some intentions, as you suggest... it would have helped me out of a dozen issues in the past, to have known what the original drafters had intended, rather than the useless codes they left us with.

lol.. meeting of the membership?

never happens. I cannot legally have a meeting anymore, because of the new AZ laws.

New AZ laws: no proxy voting. I must instead send out a mail in ballot with names of potential board members on the ballot (cannot use blank ballot).

By laws: Must get names of potential board members from owners. Cannot nominate ourselves, they must be submitted from the owners.

Owners do not respond to letters or requests to be nominated. Owners will not nominate anyone to run for board. Board cannot have meeting because a quorum of members can never be gotten, either board members or owners. Without quorum, no meeting can take place, nothing official can be done.

So, until i can get some owners to actually nominate someone so i can place their names on a ballot, I cannot send out ballots. If i cannot send out ballots, I cannot have a legal meeting to elect a board, because I cannot get more than 3 people to attend any meeting.

stuck.

Brian, I don't envy your position. If I were in that situation and coudln't get anything done, I would send two letters to the members, one certified, and one regular mail.

The letter would be a resignation letter effective immediately and state the reason as being because of non-participation by the community that an official meeting cannot be held, therefore, I cannot conduct any business, hense my reason for resigning.

Good luck

Brian wrote: "By laws: Must get names of potential board members from owners. Cannot nominate ourselves, they must be submitted from the owners." Brian, can you point me to the ARS that says this? Aren't you an owner? What law prevents you or your spouse from nominating you? I agree, no activity or nomination can be initiated from the floor because that would disenfranchise the members who used a mail in ballot. National, state and local elections have always been that way. As far as proxies go, They can be collected and abused. Notice, I didn't imply you were abusing them. Harold

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