Can CPA and association member work out of their home?

By August 5, 2018News, Questions & Answers

Q: Our community includes a semi-retired CPA.  She still works for a few clients and our gate attended has noticed an increase in visitors to her address that appear to be going to a business appointment.  Can she do this?

-A.C., Stuart

A: Focusing only on whether this is permitted under your homeowners documents, this commercial activity may be permissible.  Generally, most private homeowners associations want to prohibit or restrict commercial activity and the ability to regulate this comes down to the language in your covenants.  I have seen documents which make a blanket statement denying commercial activity without any definition of commercial activity, and I have also seen documents which do not address commercial activity at all.  We recommend drafting covenants which do not completely prohibit commercial activity in a home, but rather focus on the impact to the community.

In 2018, you can do a lot of work from home.  I am writing this article from my home. Is that commercial activity?  With a cell phone and a personal computer with internet access, there are many jobs that can be performed in the comfort of your home without impacting anyone’s daily life in your community.  There are other home-based jobs that could require storing chemicals in the garage, significant vehicle traffic on the roads leading to the home, daily deliveries of commercial goods, or an overconsumption of the community’s internet bandwidth. If the language in your covenants focuses on the impact to the community, most communities would seek to prohibit these later examples and do not want to restrict an owner from keeping a personal library or small home office for e-mail or document drafting that has zero impact on the community.  Because the Board can’t really know the extent of your business activity in the home if there is no actual impact on the community, it is also difficult to enforce a blanket restriction on commercial activity.

If your community’s documents prohibit commercial traffic in the community, the CPA may be violating the covenants by having customers access the community for in-home appointments.  Proving that these customers are not simply guests may be difficult, but that does not mean it is not a violation.

Q: I love my neighbors, but I hate their dog.  The neighbors do their best, but the dog never seems to stop barking and routinely escapes.  When the dog escapes, it often approaches our lanai and scares my children. What can be done?

-C.U., Jupiter

A: First, if you ever feel that you are in physical danger, you should contact the Sheriff or animal control.  Most homeowners associations are not equipped to serve as dog catchers or guarantors of safety, and thus it would not be reasonable to rely on the association to guarantee safety.  An association does have a duty with respect to known dangerous conditions, but even if the association has the authority to remove the dog, it could take a long time.

Second, the association’s ability to act would depend on the strength of the governing documents.  Well-written documents would provide that nuisance or dangerous animals could be removed from community, and further that the determination of whether the animal is a nuisance or dangerous falls within the Board’s discretion.   If the Board believes this behavior violates the covenants, the Board could levy fines against the neighbors or seek a court order to remove the dog from the community.

If the Board does not feel that the barking crosses the line, or if your neighbor’s dog is not markedly greater than other barking dogs in the community, you have the ability to pursue a private cause of action against the neighbor.  In other words, you could seek a court order yourself under the documents because both you and your neighbor are parties to the same contract providing that owners may not maintain nuisances on the property.

It is critical that you and/or the Board have a good understanding of your governing documents and whether the documents provide a strong authority for the Board to make a decision on the extent of the barking and whether the Board can remove the dog.  If the documents are not clear, the Board could consider an amendment to its governing documents to provide more authority. I would recommend the Board discuss this matter with its legal counsel to review the language in the documents and the extent of the Board’s duty based on the specific facts.