HOA shuts down a preschool (Mesa: lease, neighborhoods, buying)

[Bummer]

Originally Posted by blisterpeanuts

Esoteric,
you make some good points, but isn't it true that HOA's require unanimous vote to change their rules? Whereas, a city or town is run by majority rule and it's a little easier to change things.

Not necessarily, Blister . . . depending on the CC&Rs plus other regulating documents it could be a simple majority, two-thirds or three-fourths but rarely unanimous.

[Captain Bill]

Originally Posted by Esoteric76

... I am a huge advacate on working from home, and if there is no sign of it happening (obnoxious noise, traffic in and out, commercial deliveries, etc. etc.) then it should not matter. However we have to find out exactlly what we can and can not allow so we do not end up in deep yogurt. ...

What we did is create a Rule that explains the CC&R covenant that prohibits home businesses. This was done prior to my joining the board 4 years ago so I don't know the history.

As you are aware, Rules are written and voted on by the board. They do not require community vote.

You can develop a Rule similar to ours and then get your attorney opinion on it. S/he may want to tweak the language somewhat. It should cost less than $1,000 for the attorney fee, and will shift the burden to the attorney, and not the HOA.

In the home business issue, it is reasonable to prevent commercial businesses from operating in a residential community, so the covenant to prevent businesses is reasonable.

However, since our society has developed into tele-commuting and computer operated business at home, then an HOA is being reasonable if it explains in a Rule that the CC&R covenant is to protect the community from excess traffic, noise, etc, and is in keeping with the times.

Consequently, a judge would most likely find it reasonable to allow home operated businesses that do not have employees coming and going; customers picking up; and increased traffic.

Here's our language in the Rule:

"No gainful occupation, profession, trade or other nonresidential use shall be conducted on any such property and no person shall enter into any lot for engaging in such use or for the purpose of receiving products or services arising out of such usage which results in increased traffic."

That's pretty broad. It means that the homeowner cannot have employees enter the property to work in the home operated business; no customers can come there to receive the service or product; and they cannot cause increased traffic.

Just as we have a USPS delivery every day in the community, we also have UPS and Fed Ex in the community every day for various homes, and that is no issue.

An Ebay business, with no employees except the homeowners, with deliveries by USPS, Fed Ex, or UPS everyday is no issue, because these types of delivery trucks are in the community every day.

A semi-truck or other large truck type delivery to one residence every day may be an issue because that is increased traffic, and these trucks can create a lot of damage to our asphalt streets and concrete sidewalks.

[blisterpeanuts]

"increased traffic"

that's the problem. It rules out teachers, psychotherapists, or anyone who sees customers or colleagues in their home office. But someone who just has lots of visitors, or lots of parties at night, when the neighbors are actually home and want some quiet--that's allowable? Seems contradictory.

I want an HOA where there's a CC&R that says "mind your own business".

[observer53]

Originally Posted by blisterpeanuts

"increased traffic"

that's the problem. It rules out teachers, psychotherapists, or anyone who sees customers or colleagues in their home office. But someone who just has lots of visitors, or lots of parties at night, when the neighbors are actually home and want some quiet--that's allowable? Seems contradictory.

I want an HOA where there's a CC&R that says "mind your own business".

I imagine some HOAs even try to restrict that.... and if they don't, city ordinances, like the one in Tempe, take care of the "repeated noisy party" aspect.

"A mind your own business" CC and R . Nice idea, but not too likely, huh? Better to just move to a good neighborhood that doesn't have an HOA.

[Captain Bill]

quote=blisterpeanuts;8493146
that's the problem. It rules out teachers, psychotherapists, or anyone who sees customers or colleagues in their home office.

That's what it's supposed to rule out; business that have traffic coming and going.

But someone who just has lots of visitors, or lots of parties at night, when the neighbors are actually home and want some quiet--that's allowable? Seems contradictory.

If parties disturb neighbors, then the police and the city ordinances take care of that.

[blisterpeanuts]

Originally Posted by Captain Bill

That's what it's supposed to rule out; business that have traffic coming and going.


If parties disturb neighbors, then the police and the city ordinances take care of that.

I'm noticing a trend here. People who defend HOA's live in a cozy little idealistic world where everyone meekly obeys orders.

Realistically, people don't call the police unless it gets really extreme. They'll know who called the cops on them, and you will start finding your tires slashed and the like, if they're that type, which they probably are if they're that inconsiderate to begin with.

The HOA whiner knows that a professional businessperson is not likely to throw bricks through his windows or paint hate speech on his garage. If it's a rowdy group that has lots of guns in evidence, he's going to simply keep quiet and leave them alone. It's hypocrisy.

[Captain Bill]

Originally Posted by blisterpeanuts

I'm noticing a trend here. People who defend HOA's live in a cozy little idealistic world where everyone meekly obeys orders.

Realistically, people don't call the police unless it gets really extreme. They'll know who called the cops on them, and you will start finding your tires slashed and the like, if they're that type, which they probably are if they're that inconsiderate to begin with.

The HOA whiner knows that a professional businessperson is not likely to throw bricks through his windows or paint hate speech on his garage. If it's a rowdy group that has lots of guns in evidence, he's going to simply keep quiet and leave them alone. It's hypocrisy.

I'm stating, as others are, that when one buys a home in an HOA community, they are in fact signing a contract that says they understand the CC&R's and agree to comply with them.

If the CC&R's state that there can be no home businesses, and the rules clarify that to mean that no home business can be operated that causes increased traffic, then that is what every owner in that community has agreed to.

That rule applies equally to a real estate agent operating from his/her home, as well as the pre-school operator. And every home owner in that community expects the board to enforce those covenants (except when it applies to them..)

What you are saying (in your original post) is that you send your child to a pre-school that is run in an HOA community (against the CC&R's) and you feel it's ok for that operator to break the rules.

Now you're using a hypothetical situation to try and defend your position of the pre-school operator being able to break the rules, and calling everyone whiners who understand what a contractual agreement is and understand the need to comply with them.

We're not talking about obeying "orders". We're talking about complying with the CC&R's that were developed for everyone who buys into the community, and that the owners all contractually agreed to comply with.

The CC&R's were written for everyone to comply with. Unfortunately, there is always someone who thinks that the rules were not made for them, and they go to extemes to try and show why the rule should not apply.


If the pre-school operator wants to continue to run a pre-school, then s/he has some choices.

1. Rent a suitable business space outside of the community for the school.
2. Petition the community to change the CC&R's to vote to approve a change in the CC&R's that will allow a pre-school to be operated there. Since this is a self serving project, then the operator should agree to pay the legal fees to change the language, should the community vote to make the change.
3. Move to a non-HOA community, or an HOA community that allows home based businesses.

There isn't anything that can be resolved in this discussion. Apparently the "no home business" rules are in place in that community, and neighbor(s) have called attention of the business to the board of directors, so the board must take action to bring the homeowner into compliance.

The homeowner will either shut down the business or face some fines that can get expensive.

The board has no choice. If they don't enforce the rules then the other homeowners can sue the HOA for not doing their fiduciary duty of enforcing the rules.

[20yrsinBranson]

Originally Posted by blisterpeanuts

We've been sending our child to a small preschool in the burbs run out of the teacher's house. Originally, she called it "baby sitting" but the HOA is now demanding it be closed, because she's operating a business with a license. There seems to be one angry neighbor who has instigated the whole thing.

So, sure, she may be breaking a rule in the HOA, but come on. A preschool? 6 4-year-olds playing in her back yard? Apparently the neighbor was pissed about the cars parking out front twice a day, and sometimes they even slightly jutted into neighbor's driveway. Actually I can understand--I hate people blocking my driveway. But still. A preschool? It's not like it's a crack house or running a meth lab or some such.

So she's planning to move to some other neighborhood, preferably one without HOA. I'm going to suggest she rent the original house out to a Section 8 family.

Man am I glad we have no HOA around here. We're a little slow about yard upkeep so we'd probably have constant battles. Who needs the stress?

I would support the HOA on this one. Loving my peace and quiet, the LAST THING I would want to have to listen to all day is a bunch of squealing pre-schoolers. In addition to the HOA, most likely she is breaking the zoning laws as well. Most places I have lived will not allow you to have a home business *if* more than two parking places are required, for the very reason you mention.

Looks like she is just going to have to find another place to run her business. As for your Section 8 statement. Your implication is that having poor people in that house would be some kind of punishment to the HOA for enforcing their covenants and restrictions. Not only does that show a poor attitude toward economically disadvantaged people which is rather rude, but it implies that you agree that breaking the rules (that were agreed upon by the purchaser when they bought the home), is somehow acceptable. Be very careful what you wish for.

20yrsinBranson

[20yrsinBranson]

Originally Posted by SOON2BNSURPRISE

We have our own daycare and no one drops off a single kid. If the doctor did his job correctly our day care will never grow larger than 6 kids. I have not had a single person complain yet.

So how do they get there? Fly?

What does a doctor have to do with how many children you supervise. I'm not following your post at all.

20yrsinBranson

[20yrsinBranson]

Originally Posted by blisterpeanuts

I'm noticing a trend here. People who defend HOA's live in a cozy little idealistic world where everyone meekly obeys orders.

Not necessarily so. I moved from my previous residence due to morons running the HOA there. I now live on 26 very free acres and am very happy to make my own decisions. However, I do believe in following the rules.

20yrsinBranson