Q:We live in a condo community of 200 units. Our condo documents state that an owner has to use his or her unit for "residential purposes only."
We have a person who lives in our condo with her family and does house cleaning services. She is not the breadwinner of the household. Also, most of her clients are elderly and live in this community. She does take money for the services.
She is being accused of running a business out of her unit.
Is she in violation of the condo documents?
I don't think so, and most of the community doesn't think so, either.
– J.K. via email
A:I recently discussed in my column how a legal determination of "reasonableness" can be made. This week, let's discuss the concept of what constitutes "residential" use.
My first attempt in answering your question was with some Bill Clintonesque reply that "residential use" depends on what the meaning of the phrase "residential use" is.
Helpful, huh? I'll try harder.
So what home occupations or home-based businesses are permitted in residential homeowners' association and condominium communities? The answer lies with both a reading of the community's governing documents and of the regulations of the governmental jurisdiction or jurisdictions that govern the land use and zoning of the property where the community exists.
Truth is, if you chose to live in a residential planned community, you probably do not want a neighbor operating a business out of the unit or garage next door. Imagine customers and employees coming in and out. Add that car traffic to that of delivery companies picking up and delivering business goods. What if hazardous materials are being stored?
Think about noise, vibration, glare, fumes or odors emanating from the "home business." How about having your telephone, television or Internet-access service hampered because of that home business? An association should be concerned about all these as well as other issues.
Many Florida counties and municipalities have regulations regarding the operation of home occupations and home-based businesses. I will use Sarasota County's Code of Ordinances as an example (Section 5.4.4 f.)
As a first step, the operator must pay for and obtain a business license (formerly known as an occupational license).
Then, in order to be in compliance, the business use must not show any visible evidence of the home occupation or business. In the words of the ordinance, the business use must be "clearly incidental and subordinate to its use for residential purposes by its occupants and shall under no circumstances change the residential character" of the community.
Limits exist on the size of the property that can be used for storage and operation of the business.
Customers are prohibited from coming to the residence, and so are employees, except under very specific circumstances.
So if your condo documents simply say that units are for residential use only, I would rely on the exceptions contained in the local ordinances for the definition of what constitutes permissible activities. Keep in mind, though, that Sarasota County's Code of Ordinance provides that where deed restrictions are more restrictive than its own code, those deed restrictions apply.
Therefore, if a community wants to be more restrictive than a local ordinance calls for, it can be. But does it necessarily want to do so? Does your community have part-time residents or semi-retirees? Should residents be able to accept business phone calls, emails or the occasional business-related FedEx? I would think so.
Finally, in your scenario, I would want to know who is accusing this woman and why. Also, if you say that "most of the community" disagrees with this decision, how did you determine that?
Tamela Eady is a Florida Bar board-certified real estate attorney with 25 years' experience. The subjects discussed in her columns are not intended as specific legal advice to anyone and are subject to principles that may change from time to time. Questions may be modified for clarity or for brevity. Email questions for possible inclusion in a future column to tke@eadylaw.com.
