THE VIRGINIAN-PILOT
Copyright (c) 1995, Landmark Communications, Inc.
DATE: Saturday, September 16, 1995 TAG: 9509140275
SECTION: REAL ESTATE WEEKLY PAGE: 16 EDITION: FINAL
COLUMN: COMMON GROUND
SOURCE: G. ROBERT KIRKLAND and MICHAEL INMAN
LENGTH: Medium: 65 lines
Q. Several home businesses have popped up in our association, including a tailoring business and a potato chip franchise.
We have no restrictions that specifically prohibit business operations in the community, but our covenants say that the lots are to be used for residential purposes only.
Can we stop business operations out of people's homes when they increase traffic and create a commercial environment.
A. In order to develop a policy on home businesses, you must first carefully examine the covenants that restrict the use of the property. You have told us that you have a covenant restricting the use of the lots to residential uses only.
This convenant is generally not sufficient to prohibit all business activity. Most courts permit business activities that are incidental to residential uses. Factors in determining if it is incidental include the frequency of customer visits, the number of employees, signage and other externals, such as noise.
For example, some child-care businesses have been permitted under the residential use only covenants. In many jurisdictions, zoning ordinances have been modified to permit certain business uses in residential zones as accessory uses so long as the primary use of the home is residential.
In areas where such a zoning ordinance exists, the courts would likely use it as a guide in deciding if a particular use violates the residential use covenant.
A covenant prohibiting or limiting trade, business or commercial use is much stronger than a residential use covenant. If your documents also contain provisions whereby one may not conduct an activity that creates a nuisance or is offensive to the community, then you should be able to develop a rule that interprets that prohibition to include certain business uses.
You probably could not prohibit an office use which has limited external impact. The primary criteria for a business creating a nuisance is the external impact on the other members of the community.
Therefore, your criteria in creating a rule should include the frequency of customer or employee visits, deliveries, or pickups, the use or storage of hazardous materials, the production of offensive noises or odors, and the use of signs. These are relatively objective standards, which can be enforced.
In addition, if you wish to avoid any unintended waiver of your business restriction, you may want to require business owners to register with the association and to provide some basic information on the type of business activity anticipated.
The key in rule drafting, is to keep the rule within the limits of the covenants which are recorded. You may wish to have your association attorney review the rule that you propose to pass before putting it to a vote and distributing it to the members. MEMO: G. Robert Kirkland, president of a Virginia Beach property management
consulting firm, and attorney Michael A. Inman specialize in Virginia
community association issues and are affiliated with the Southeastern
Virginia chapter of the Community Associations Institute. Send comments
and questions to them at P.O. Box 446, Virginia Beach, Va. 23458. To
submit questions by phone, call 430-3617; by fax: 431-0410.
by CNB