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MarcieS1
(Oklahoma)

Posts:6


10/03/2008 10:23 PM  
I am an attorney and I am transitioning to Adoption law. I have had women who are placing their babies through adoption stay at my home (4 girls) I have large 6 bed home which I live in and have a home office. The HOA says I cannot work from home in my office or have girls who are pregnant stay at my house. We are not showy or noisy at all. The girls do not wonder the neighborhood at all. One may walk up and down the street but not all at once. I am outraged at this. Before I had guest stay from out of town and had a live in housekeeper. I am single and have no kids. My home is valued at 600K and the home values are strong here 550-900K is the range. I live in an established neighborhood that was developed in the 1970's. It is nice. Not gated. My house is 7000 SF on half an acre. Any thoughts would be good.
GlenL
(Ohio)

Posts:5023


10/04/2008 12:49 AM  
Gated or un-gated is not the issue here; what do the Declaration of Covenants, Conditions and Restrictions (CC&R’s) that you agreed to abide by at closing say on the matter? The answers to your questions most likely are spelled out in them. Do they completely prohibit home based occupations? Do they identify the relationships between yourself and your guests or limit the duration of their stay? Do they prevent you from renting a room or to the girls? Are you required to have a business license, a public record with your address on it? Do local zoning, fire or health codes govern any aspect of your home, with the girls in residence? Are you advertising using your home address?

While it is theoretically no ones business what goes on inside your home, somehow you have come to the attention of the BOD. Someone has evidently told them exactly what you are doing and it violates one or more covenants.

"Common sense is like deodorant--the people who need it most never use it."
AnneA1
(Delaware)

Posts:9


10/04/2008 4:31 AM  
Glen and everyone...I have a question. Our Deed Restrictions have an ammendment that states "no trade, business, industry, profession or occupation shall be conducted on any lot. This provision however, shall not prevent the maintenance of any carrying on of business of Declarant, it's successors and assigns as builder or real estate developer on the premises until such all plots are sold (including maintenance of an office, for sale signs and the like." We have a former president who is running his business out of his home and has his business license registrated to his hoem address. The current president's opinion is that we can not regulate what mail he gets to his home....and that's all he has to say about this. Any opion or suggestion.
SusanW1
(Michigan)

Posts:5202


10/04/2008 5:22 AM  
What if these girls were all her daughters?

4 young girls and 1 adult woman would fit in a 6 bedroom home.

GeorgerwilliamsW
(Indiana)

Posts:975


10/04/2008 5:36 AM  
Anne, home based businesses is an area regulated by state law, municipal codes, and case law. It is different in every state.

What you will find is this is an area where such covenant restrictions as you have posted are unenforceable if the home based business is not intrusive into the peace and quiet of the neighborhood. Courts have routinely held that covenants and zoning codes cannot restrict conducting non-intrusive business from homes.

Typically, you can have a home based business, regardless of what covenants specify, if you do not have lots of customers coming to your door, if you do not have lots of shipping and receiving, such as using your home as a warehouse, and if you do not have more than one or two employees working out of your home.

For instance, most likely, you can run a small business accounting firm from your home or a medical coding business, a publication/webpage design service, or real estate brokerage service if these operations do not require customers to come to your home. And you don't particularly have to worry about daily UPS or FedEx deliveries.

My best guess is that the operation being run by the original poster would be held to violate the deed restrictions by a court. And, as Glen notes, it may violate zoning, housing, health, and other codes as well. As an attorney Marcie is trained to research the statutes and case law in Oklahoma to answer her own question.

What she is describing is akin to a bed and breakfast, in which unrelated people stay in her home for a short period of time as part of a business operation. That is fair game for control under a declaration of covenants.
RW1


Posts:0


10/04/2008 5:36 AM  
These type issues revolve around the, if any, DAMAGE to the HOA resulting from the alleged home business.

Good luck trying to enforce such regulations if you can't prove any damage or similar detriment.

Not all "rules" are reasonable and thus enforceable.

SusanW1
(Michigan)

Posts:5202


10/04/2008 5:40 AM  
Marcie - get "temporary" guardianship of these girls. They now are a part of your "family"

DonnaS
(Tennessee)

Posts:5671


10/04/2008 5:51 AM  

Marcie,

Our normal first response to a post like yours would be to "consult your attorney" but you are already that person. Home business covenant restrictions were adopted to insure that there would be no additional traffic or disruptions to the streets or neighborhood caused by extra traffic going to and from the unit and street.

Home business? Well everyone in the world now works from a home office and for a HOA to try and regulate that seems impossible and illegal. That is out of the realm of HOA enforcement.

Many Docs do address additional non family members from residing in a property of the HOA. It will probably read as " single family use" and we have argued that subject to death as to what is considered a single family. As to the value of your home, that really is a non issue here because the covenants do not classify homes and enforcement by the properties value.

JohnK3
(Pennsylvania)

Posts:967


10/04/2008 8:18 AM  
Susan,

Wonderful response to this dilemma. Good going!
BrianB
(California)

Posts:2803


10/04/2008 12:22 PM  
yes they can, if you signed a legally binding contract with the HOA upon the purchase of your property, if the contract stated that they could.

There are actually several "common" things that are part of contracts that can affect what you do inside the walls of your home: play loud music, conduct a business, allow renters, store toxic chemicals, keep animals, raise animals, put up certain window treatments, play loud TV, set up a meth lab, etc..

it all depends on the contract you signed when you purchased your property.


(c'mon everyone, aren't we all just waiting to hear a lawyer tell us that they didn't READ the covenants before they signed and purchased?)


DonnaS
(Tennessee)

Posts:5671


10/04/2008 12:44 PM  

Brian,

Yes, that would be a hoot to hear that Marcie did not read her deed restrictions. But other than that, no HOA could prevent me from having an office where I conducted a business that would not be doing any of your above mentioned services. My Husband does all of his design work from a home office. 9 to 5 and is considered his business. Proof reading documents is a paid service and my friend does that from a home office--9 to 5 so that is what I am saying, would be not enforceable but have a turnover in people residing in a home might be considered a business that the HOA bans. This comes to look like short term renters which would be also a business not allowed in a single family residence.
DonnaS
(Tennessee)

Posts:5671


10/04/2008 12:53 PM  

Anne,

As I have just posted above, your HOA would have a very difficult time to enforce and have a Judge agree that some home businesses are NOT under HOA restrictions. Once a business starts to have traffic or disruption to the neighbors, then it is HOA business. In todays work market, there are more and more people working from home.

I would say that your deed restriction is way too vague as it does not spell out any specifics, such as traffic impedement, noise or other items deemed disruptive to the neighbors or the HOA. Any references to the builder or Declarant should be removed unless he is still present in the community. And regulate the mail?? That is a Federal issue that NO ONE can interfere with the mail unless he is shipping illegal items and then ONLY the Feds can touch that.
DJ1
(Ontario)

Posts:798


10/04/2008 1:25 PM  
A Mom (parent) raising her own kids in her home is even running business. I've seen numerous occasions where someone will ask a mother 'what do you do for a living'? Many people would agree it argued that is a job. So she is running her 'business' from home. Are they going to stop that 'business" too?


I know, I know, it is a stupid argument but ...it's Saturday.
DonnaS
(Tennessee)

Posts:5671


10/04/2008 1:33 PM  

DJ,

No argument is ever stupid. I just mentioned to George that nothing that we post is stupid. P.S., you must have too much time on your hands like I do right now, waiting for the clock to go to dinner.
MaryA1


Posts:0


10/04/2008 2:17 PM  
I really doubt Marcie has violated any covenant, except perhaps the home business. However, George has give good info on that and I doubt the HOA could restrict a business that does not cause traffic, noice or any other type disruption to the neighborhood. I think we have an over zealous board here who just doesn't like these pregnant girls in the neighborhood. Marcie lives in a big home, on a very large lot so I'm sure she and the girls are not causing any type disturbance to the neighbors. She did not state this is a 55+ community which might have restrictions on the age of residents. When you live in a single family home the HOA has no business telling you who can live in that home with you. They cannot regulate how long guests can stay at your home either. If I was Marcie, I'd be inclined to tell the board to "take a hike"!!
AnneA1
(Delaware)

Posts:9


10/04/2008 2:21 PM  
Thanks everyone. Some members have tried to change the documents to remove the builder, who no longer is in here, with opposition from the board. Go figure.
BrianB
(California)

Posts:2803


10/04/2008 2:42 PM  
just to sum up a bit: Marcie, are you in violation of the covenants? If they say "no home based business", then technically, yes you are.

However, as George, Mary, Donna, and many others point out, that particular covenant is often judged by courts to be too vague to be enforceable as a blanket ban on ANY business. Judges tend to side with homeowners when the business has little to no impact on the activities of the neighborhood, and with the HOA's when the business does impact the neighorhood, cause safety issues, etc.. If your business is low impact, quiet, etc., most likely a judge will side with you, should the HOA impose sanctions and you sue. Your mileage with a judge may vary, as judges are not bound to uphold any laws, etc..

As others have pointed out, allowing young mothers to stay with you might (or might not) violate other provisions of the covenants (running a bed/breakfast, renting or subletting), but you can easily sidestep these concerns with a bit of finesse: you don't charge them rent or room and board, they are merely visiting/recouperating/etc.. Their staying with you has nothing to do with your business, just a happy coincidence, perhaps.

There's been lots of good advice offered.. hope you take it. And my advice: pin the board's ears back a bit. Demand, in writing, that they document the violation, and then demand in open meeting that they enforce that "no business" ban on ALL homes. I bet most every one of your neighbors is running a home based business, enlist them on your side as well. After all, if your business is first, then the babysitter next door is second, the blogger who accepts advertising on his website is third, the tax preparer is fourth, the guy who fixes his buddies cars for a beer is fifth... they are all running a business.

I was prez of an HOA for a decade with the same "no business" rule, and I never could figure out how to enforce it legally either. If the board wants to cause you a little trouble, make them do their job 100% right. By the book, by the letter of the law, etc.. a little civil disobedience can go a long way.
GlenL
(Ohio)

Posts:5023


10/04/2008 2:53 PM  
Marcie actually answered in a seperat thread:

10/04/2008 5:38 PM Quote Reply
I did read the covenants and all those others. According the developer's original convenant it expired in 2006. There is no record of renewal of it. My business is a non profit and the mail is to my PO BOX and law office. Three houses down from lives a large family from India. 4 men are doctors, they all live together and a lady on the next block has a live in nanny and a live in housekeeper. The neighborhood is full of doctors, lawyers, and realtors all who use their home office for work. There is one family with tripletts. I am sure somewhere a woman in my heighborhood is pregnant. This is not a 55+ place at all. There is no traffic coming in and out. People have parties at their homes all the time and one near me is loud. Due to the way adoption laws are regarding expenses for birth mothers everything I do is legal. There are no signs in the yard or anywhere else about my house. The guy causing the commotion has his sailboat parked in his driveway and a flagpole with OU flag on it. He is retired and has a lot of time on his hands now.

"Common sense is like deodorant--the people who need it most never use it."
MaryA1


Posts:0


10/04/2008 3:01 PM  
Which reinforces my comments. Marcie is free to do as she wishes in her home. If she wants to invite 10 homeless people in for the weekend that's her perogative. The board cannot tell her who can be a guest in her home and they cannot tell her how long a guest can stay in her home. While she's telling the board to "take a hike" she should include the busybody neighbor to go along!!!!
GlenL
(Ohio)

Posts:5023


10/04/2008 3:02 PM  
Marcie, the onus is on the HOA to prove that you are in violation. If you are not violating the Covenants then they have no case. I'm not sure what you mean when you say the original Covenants expired in 2006, most HOA documents have a built in renewal clause.

"Common sense is like deodorant--the people who need it most never use it."
MicheleD
(Kentucky)

Posts:4491


10/04/2008 3:25 PM  

This. . . .


Posted By GlenL on 10/04/2008 3:02 PM
Marcie, the onus is on the HOA to prove that you are in violation. If you are not violating the Covenants then they have no case. I'm not sure what you mean when you say the original Covenants expired in 2006, most HOA documents have a built in renewal clause.




FrancescaM
(Washington)

Posts:264


10/05/2008 7:27 AM  
Marcie - get "temporary" guardianship of these girls. They now are a part of your "family"

If that could be done... that would solve the bitching... from your HOA>

MaryA1


Posts:0


10/05/2008 9:28 AM  
Why go through that legal hurdle? The assn has no right to dictate who can live in your home!!!! This is a single family home and it is NOT a 55+ community.
TamaraW
(Ohio)

Posts:193


10/05/2008 10:07 PM  
Would this not be "boarding"? If it is considered that, then check what all your governing documents say about that. OUR governing documents specifically do not permit a home here to be used as a "boarding home" and yes we have had to face that in our time on the Board.

SITUATIONS: School teacher allowed college students, sisters, to stay in her home to transition from graduation to college, while their parents were out of the country. This was for 2 years. After finding the fact that teacher also had personal relationship with family and sisters, the Board did not see this as a Boarding situation. Just a friend helping a friend.

Homeowner rented their home to a family member who was in college. College family member then rented rooms to friends. This was looked at as a Boarding situation, since the "rooms" were being rented and we saught eviction. However, the unstable college kids left before we needed to proceed with lawyers and courts.
MicheleD
(Kentucky)

Posts:4491


10/06/2008 6:13 AM  
Foreign exchange students.

Not a business.

Not members of the family.

If the number of residents in a home is in line with what local zoning regulations and statutes dictate, I would be hard pressed to think of a leg that an HOA would have to stand on that would prohibit a resident's ability to have people of their choosing staying in her home.

TamaraW
(Ohio)

Posts:193


10/06/2008 7:58 PM  
I would think the same Michelle.

Marcie - what do your "expired" governing documents say. Do they think you are running a business from your home?

BTW what you are doing for those girls/women/mothers is a beautiful thing! STRONG KUDOS to you!
KirkW1
(Texas)

Posts:1665


10/07/2008 7:34 AM  
If we are going to try and get caught up in an argument about when something becomes a business, then one must consider that often times receiving reimbursements from expenses is in fact viewed very differently then receiving pay for providing the very same services.

And we are talking about adoptions here. I am sure that this line is always on the mind of the poster since the mothers can receive expenses, but not compensation. And as the attorney helping these mothers she would also probably be walking that line.

Along the same lines, there are foreign exchange programs that pay partial expenses for hosting the student. This is not considered income as the amount received would be expected to be less then the actual expense of hosting the student. And yes, this has passed muster with the IRS.

In many areas though Covenants must be written so as to show impact to prohibit business activity. For instance, in my covenants they state that a home business is in compliance if no more then one car per day visits the house (exclusive of the resident's cars). Thus if the girls don't have cars, then all is fine here.

But the real problem is that unfortunately, some people thing teenage pregnancy is contagious. They still feel that the sight of one pregnant teen will encourage others to become pregnant. (Or to be less concerned about the possibility.) They don't realize that this situation is yet another example of how devastating pregnancy can be on a teen mother.
MarcieS1
(Oklahoma)

Posts:6


10/07/2008 11:10 AM  
Read very carefully. It is in the interpretation. "on any lot" tells me that to interpret this an undeveloped lot. Is yout Pres formally trained to properly interpret you bylaws and Deed Resrictions? No state can dictate the name on the title of your home. Federal law always trumps state or lower law. The Supremcacy Clause fro US Supreme Court. Current state law may state the a business address must be where thr business is conducted or something.
MarcieS1
(Oklahoma)

Posts:6


10/07/2008 11:13 AM  
Good point. The only place in the world that has laws about how many children you can have is CHINA. The US does not dictate how many kids one can have. Very Good point. Unfortunately these girls are not my kids, alot are 16-18 years old and I must be appointed as their guardian in some cases.
MarcieS1
(Oklahoma)

Posts:6


10/07/2008 11:27 AM  
Thank you for your response, I can tell you are from TX. TX is not one of our friendly private domestic adoption states. Oklahoma is a very friendly adoption state. Here is OK I am working to add to the laws here. I want what I do to be legally called Adoption Facilitator. I am modeling this after California codes. I do not walk fine lines as an attorney with regards to adoption. Or any other area of law. Laws are vague and non specific with regards to HOA in Oklahoma. Adoption laws are short less than 20 pages in the statutes. I have notice that TX has the Gladney Center for Adoption this a state funded adoption agency and they focus on international adoptions.

None of these girls have a car. I have regular Ford Expedition I use to transport- there are no signs or markings on the car. The windows are tinted. I provide luxury accomadations and transportation.

You are so right= People think teen or unwed pregnancy is contagious. And until you see it for yourself- people do not know the toll this takes on the birth mother. I try to provide counseling and as much suppport I can. You are so right about that.
BrianB
(California)

Posts:2803


10/07/2008 12:32 PM  
Posted By MarcieS1 on 10/07/2008 11:10 AM
Read very carefully. It is in the interpretation. "on any lot" tells me that to interpret this an undeveloped lot. Is yout Pres formally trained to properly interpret you bylaws and Deed Resrictions? No state can dictate the name on the title of your home. Federal law always trumps state or lower law. The Supremcacy Clause fro US Supreme Court. Current state law may state the a business address must be where thr business is conducted or something.




Just want to point out, the supremacy clause does not provide that federal law always trumps state/lower laws. Federal laws override CONFLICTING lower laws, not necessarily all lower laws. Courts must determine the intent of the higher law, then the impact of the lower law, and determine if there is a conflict. If there is a conflict with intent, then Marcie is correct, lower laws lose. But if it is not in conflict with the intent, then the lower law can stand and override the higher law.

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