Without exception, every set of association governing documents I have reviewed over the last two decades has contained a restriction which states that the property is to be used for "single family residential usage" or words to that effect.
While many of these documents were written decades ago, even newer association covenants continue to reflect this time warp when it comes to the concept of what kind of work is done in the home these days.
So just what kind of commercial uses have I seen over the years in all types of communities? Well, the typical work from home situations include folks who earn a living through the use of their computers or phones such as telemarketers, graphic artists, IT technicians and financial advisors. Moreover, many types of companies have embraced the concept of telecommuting for some employees as it cuts down on expenses for both the employer and the employee.
In some of the more unusual situations I have encountered, an HOA owner had turned her garage into a very well equipped hair and nail salon while a high-rise condominium owner was filming pornographic movies in his unit and, unfortunately, out on the balcony.
How do most of these "single family residential use" violations come to light? Usually the activity is found due to open and obvious commercial activity on the property-delivery trucks or customers arriving on a routine basis or noises and smells may be the tip-off. Sometimes the suspicions are confirmed because someone sees the residential property listed as the business address either in corporate records or in local advertising.
This brings us to the main reason that association documents limit the use of the property to residential usage and that is to prevent the property from being used for a purpose which creates a nuisance for others.
Certainly, having daily customers and deliveries arriving at one's home could create both security and logistical problems when it comes to guest parking, noise and the potential for things to go awry. Naturally, running any type of a commercial venture out of a residence which involves flammable materials and other practices best suited to a commercial location provides ample reason to enforce the residential use restriction.
It is not illogical to assume that there are association members and residents in almost every community who are, indeed, engaging in commercial activities inside their properties. Does an association's failure to enforce the single family use restriction set it up for a selective enforcement problem in the future? Well, it can if a future commercial usage is more egregious than the ones being overlooked.
Boards would be well advised to review their residential use restriction with their attorney and see if it can be modified to bring it up to speed with the way we live in 2014 while not losing any of the protections needed to prohibit inappropriate commercial activities inside condominium/cooperative units as well as single family homes.
A telecommuter is not likely to have any impact on his or her neighbors but the porno producer next door? Let's hope you never have to find out.