Published on: March 23, 2001
everal weeks ago a article appeared in a local newspaper which raised an issue of considerable concern to most communities – the conduct of home businesses. In this day of the need for two incomes and with the widespread acceptance and use of computers, home businesses are becoming a more reoccurring issue. And, if trends continue in the direction they are currently going, this will be an ever increasing issue.
In reviewing this situation, boards need first to look to their governing documents as, depending upon the wording, they may, or may not have a certain degree of flexibility. If a master deed prohibits any business usage of a unit then a board is left with little choice but to enforce this literal provision when and if a violation comes to its attention. Fortunately, such wording is the exception and not the rule. Rather, most master deeds restrict the use of units to residential purposes. This, while implying the converse – that is, no business usage – is not quite that literal.
Many documents are explicit and with a residential use only clause specifically permit home offices for professionals and the like. Others make reference to the local zoning code and permit what are called accessory uses. What this means is that a home office is permitted. However, clients, patients or customers cannot be serviced at the unit, nor can employees work there. Often, permitted uses are couched in terms of home offices for professionals.
But why should the use be so restricted. In the next century will not others than professionals be able to work from their homes without negatively impacting their neighbors. Let me suggest the appropriate focus should be on whether (a) there is a perceived business usage observable from outside the unit and (b) whether other than ordinary traffic is created. Clearly under this testing the rule against servicing patients, clients and customers at the unit will be preserved. But, if all the activity is over the phone, through the mail or on the internet, the use should be permissible. Similarly, out of the ordinary package deliveries would be prohibited as would using the basement or garage, etc., as a mini-warehouse. But if all that is received is some extra mail, then where lies the impact on the rest of the community.
Future forecasters see, among other things, telecommuting. In fact, many businesses currently permit this form of work at present. Community associations must, I suggest, adapt to this new reality and encourage such new lifestyles. Board’s should remember that their primary role is to preserve and enhance the value of the homes within their communities. This can be accomplished, in part by letting homeowners utilize their property in an expansive manner so long as the use does not negatively impact others within the community. If the use is wholly within the unit, is undetectable and unobservable from the outside, and produces no additional traffic than traditional residential use, then why not permit it where, in fact, such usage has become part of the normal usage of a residence.