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Subject: Amendment Question
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PaulC20
(Delaware)

Posts:3


08/02/2021 7:00 PM  
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
MaxB4


Posts:1211


08/02/2021 7:05 PM  
First, you need to know if day care are allowed by state statues. It's possible if state allowed, they may supersede your governing docs.

If passed, the HOA would pay the filing fees to record the amendment and each party would handle their legal fees.
AugustinD


Posts:1585


08/02/2021 7:31 PM  
Posted By PaulC20 on 08/02/2021 7:00 PM
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?
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.
KerryL1
(California)

Posts:8525


08/02/2021 7:39 PM  
What IS the process to amend your governing document, in this case probably your. CC&Rs (AKA, declaration, covenants, deed restrictions). As Augustine points out the process is usually quite complicated and might even require secret ballots, sp[ecial people to count them, plenty of written notices and so on. Perhaps a seasoned board member know hoe to amend your CC&Rs. If you have a property manager, they should know. If not, I think your Board should seek the advice of your HOA attorney.

What size is your HOA? Along with Max's mention of state codes, what do your municipal codes says about child care. (Just) one problem for HOAs of "are" daycares is the increased traffic and possibly parking issues.
CathyA3
(Ohio)

Posts:2393


08/03/2021 4:59 AM  
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.
PatJ1
(North Carolina)

Posts:197


08/03/2021 5:14 AM  
In Charlotte, NC, home run day care centers (with over a certain amount of children) must be licensed by the City/County (not sure which). They perform inspections and have requirements (space and such) that must be met.

Before going though changing the HOA's original documents, check into city, town, or county restrictions. If the person applying fails to fulfill those requirements, then no matter what the the HOA does, they will be denied a license to operate and there would be no need for a Special Meeting.

Board members are volunteers. Many have no idea what they're doing. Educate them. Don't beat them up.
PaulC20
(Delaware)

Posts:3


08/03/2021 6:59 AM  
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
JohnC46
(South Carolina)

Posts:11422


08/03/2021 7:00 AM  
Paul

Generally a Petition is not enough to change an Amendment. There has to be a proper request to do so and then it has to be voted on.
AugustinD


Posts:1585


08/03/2021 7:05 AM  
Posted By PaulC20 on 08/03/2021 6:59 AM
Last time I checked don’t you sign off at closing that you read the governing documents and you agree to them?
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.
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.
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.
SheliaH
(Indiana)

Posts:4175


08/03/2021 9:14 AM  
I don't see what or why the HOA would have to pay anything in this endeavor - seems to me if the person wants to establish this business, he/she should be paying whatever costs to set it up, which may include going to the city or county (and the state) to get the necessary permits. Depending on zoning, he/she might not be able to set up a large daycare center (whatever that means), so he or she should bear the costs of pursuing a variance as well.

For the HOA, I would think all you would need to do is hold a special homeowner's meeting if this person is successful at getting 75% of the homeowners to sign off on pushing to amend the documents. At that meeting, you could ask the homeowner to answer questions regarding the size of the daycare center, how he/she plans to address traffic, noise and whatever else could happen with a business set up in the middle of a residential area. Let's see how much thought he/she has put into this - it may prompt some homeowners to answer additional questions and if they don't like what they're hearing, they may not sign off on amending the documents to allow it.
BenA2
(Texas)

Posts:1003


08/03/2021 10:19 AM  
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.
BenA2
(Texas)

Posts:1003


08/03/2021 10:30 AM  
Posted By PaulC20 on 08/03/2021 6:59 AM


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



Whether or not they were aware of the rule is irrelevant. You still have a right to enforce it and they have a right to try to change it. If the rule is changed it is changed by a super majority of the association. Why would the association not incur the costs of the election and filing fees?
JohnC46
(South Carolina)

Posts:11422


08/03/2021 10:31 AM  
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.
MaxB4


Posts:1211


08/03/2021 10:41 AM  
Posted By PaulC20 on 08/02/2021 7:00 PM
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



What do you define as a "large family daycare"?
PaulC20
(Delaware)

Posts:3


09/06/2021 7:05 AM  
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
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