HOA Opposing My Wife's Licensed Childcare Home
 

Hello My wife has started a licensed childcare home in Jan 2018 and is operating with 12 kids since then . A couple days back I also received a letter from my HOA stating that daycares are not allowed within the community and they are threating me of some action that could be taken against me. I thought the state and local zoning ordinances were above the HOA law but I may be wrong. My question is what actions can the HOA take against me if I start enrolling children into my home daycare and what legal resources or help are available to me as a provider.

We are in Cypress Texas.
Thank you!

I think HOAs can do that in Texas. You signed a contract when them agreeing to follow their rules and bylaws when you bought the house. A few states, like California, protect family childcare, but I don't think Texas is one of them.

My HOA can prevent me from operating under a large group license (12) but cannot stop me from operating as a family provider (6) as that is a protected trade (old homestead laws). The difference in having an employee (required for 12) and being a sole provider (of 6) keeps it from being considered a commercial business. ;)

It varies by your state and county. What does your HOA contract say? Did you sign it?

Exerts from HOA laws
 

Attachment 5184

Attachment 5185

I am attaching two sections from "Declaration of covenants, conditions and restrictions of ".

Do i need to look at any other HOA documents?

Originally Posted by sunilnpendse@hotmail.com:
Attachment 5184

Attachment 5185

I am attaching two sections from "Declaration of covenants, conditions and restrictions of ".

Do i need to look at any other HOA documents?

Did the HOA specifically state that the rules say you can't operate a business from your home when they notified you of it being against the rules?

Asking because usually in my experience when any authority/agency tells you that you are violating a rule or regulation they include a copy of the rule or state where the rule can be found.

I found this in case law. :confused: Mine does not use this language, it specifically uses the term "commercial business" so was easy to fight.

"It follows that the term single-family residential purpose manifests an intent that a residence not be used for residential purposes by multi-family or non-family groups. "Construing the term residential purposes employing the common and ordinary meaning of the words used, it denotes the occupying of a premises for the purpose of making it one's usual place of abode."

Mine does have the no siganage rule, but I never intended to have anything out to advertise I was home alone with several small children. ;) Kind of defeats my goal of privacy and safety. :lol:

I appreciate everyone's advice and time.

My wife is under stress and I am trying to help her with this fight.

We are also not putting any signs or signage anywhere in our neighborhood - not even on our cars.

I want to do below as my next steps -
1) Go and talk to HOA president who stays close to us. Explain that this is a not a business with lots of car trafic etc.
2) Go to HOA meeting and explain this there as well.
3) if those options do not work out then I may have to go get a lawyer.

Let me know if you have any other thoughts.

I found a post on a lawyer site where a couple wanted to use their adult kid's vacated bedrooms as a bed and breakfast for families visiting a local hospital. Their HOA contract had similar language to yours and this was the lawyer answer:

"In most of these communities any business is prohibited. While you might run a sales business from your home where you went out to customers, having a business on site where the clients come to you and live in your home is a direct violation of the covenant and can lead to your expulsion."

https://www.avvo.com/legal-answers/w...rpo-72184.html

No offense but probably the first thing that should have been checked. The reason i cannot operate a childcare in my home is because of HOA saying no. However, I am looking for a home that doesnt have a HOA so I could open up a home childcare.

Originally Posted by HHangout:
No offense but probably the first thing that should have been checked. The reason i cannot operate a childcare in my home is because of HOA saying no. However, I am looking for a home that doesnt have a HOA so I could open up a home childcare.

For many of us, the HOA saying No was simply step one. ;) It is the starting point, not the end game. Many HOA's are also dissolved by the property owners once the last lot is sold and the builders no longer have an interest. ;)

Originally Posted by sunilnpendse@hotmail.com:
Attachment 5184

Attachment 5185

I am attaching two sections from "Declaration of covenants, conditions and restrictions of ".

Do i need to look at any other HOA documents?

In your HOA documents, does it specifically say anywhere that you are not able to operate a business?

Are you licensed?
Before contacting your HOA, I would first check with licensing in your state. Even if you're not licensed, they should be able to answer the basic question: is daycare protected against HOA rules.

In my state, in-home daycare IS a protected business. No HOA can refuse a provider doing daycare in their home.
My licensor told me when looking for homes last year, that if I came across an HOA who told me differently, to tell her and she will forward them the statutes.

Yes we are licensed under DFPS Texas. I will surely send my licesing rep an email. Appreciate your help.

Originally Posted by Snowmom:
Are you licensed?
Before contacting your HOA, I would first check with licensing in your state. Even if you're not licensed, they should be able to answer the basic question: is daycare protected against HOA rules.

In my state, in-home daycare IS a protected business. No HOA can refuse a provider doing daycare in their home.
My licensor told me when looking for homes last year, that if I came across an HOA who told me differently, to tell her and she will forward them the statutes.

Really? I had no idea... I've never paid attention to HOA rules because I'd NEVER live in one but;

Can you ask your licensor for those statutes?

A friend of mine just closed up shop because he HOA forced her to. She hired an attorney and fought over a year and still lost because the HOA covenants said no businesses.

I'd love to pass on some good info to her and maybe she can appeal.

I have sent an email to my REP and will post comments if I receive it back. Let's see.

Originally Posted by Blackcat31:
Really? I had no idea... I've never paid attention to HOA rules because I'd NEVER live in one but;

Can you ask your licensor for those statutes?

A friend of mine just closed up shop because he HOA forced her to. She hired an attorney and fought over a year and still lost because the HOA covenants said no businesses.

I'd love to pass on some good info to her and maybe she can appeal.

I know for fact MD protects daycares; when I first opened in 2000, I was looking @ homes in Western MD on the WV border; I went thru all the MD training required in 2000 because you can't do childcare for even 1 kid without your license - the neighborhood assoc home I was looking to buy in tried to tell me it was illegal under HOA... it's not

Originally Posted by Blackcat31:
Really? I had no idea... I've never paid attention to HOA rules because I'd NEVER live in one but;

Can you ask your licensor for those statutes?

A friend of mine just closed up shop because he HOA forced her to. She hired an attorney and fought over a year and still lost because the HOA covenants said no businesses.

I'd love to pass on some good info to her and maybe she can appeal.

When i moved, my licensor asked if I had an HOA because i would need their permission first. So in MN, i dont think daycare is protected

It is- I'm MN too.

Blackcat: I sent an email to my licensor. I'll let you know when she gets back to me.

Originally Posted by Snowmom:
It is- I'm MN too.

Blackcat: I sent an email to my licensor. I'll let you know when she gets back to me.

I wonder why my licensor said i would need permission then...

Originally Posted by Snowmom:
It is- I'm MN too.

Blackcat: I sent an email to my licensor. I'll let you know when she gets back to me.

Thank you!!!

I have NO idea... I've never even heard of this being an issue until recently. I hope your licensor knows! Thank you again! :)

Originally Posted by MomBoss:
I wonder why my licensor said i would need permission then...

Maybe we should ask Tom Copeland... I wonder if he knows since he is in MN too?

Here's what she emailed me:

Yes, there are protections in place by the State of MN to allow this. Here’s a link to the Revisor’s website, as well as the language shown there. The citation is 245A.14 Subd. 1:

https://www.revisor.mn.gov/statutes/cite/245A.14

245A.14 SPECIAL CONDITIONS FOR NONRESIDENTIAL PROGRAMS.

§ Subdivision 1.Permitted single-family residential use. A licensed nonresidential program with a licensed capacity of 12 or fewer persons and a group family day care facility licensed under Minnesota Rules, parts 9502.0315 to 9502.0445, to serve 14 or fewer children shall be considered a permitted single-family residential use of property for the purposes of zoning and other land use regulations.

It is unlawful for HOA’s to attempt to tell homeowners that they cannot operate a family child care program in the Association. They can try to have language in their own bylaws, but it won’t hold up in a court because they cannot overstep MN State Statute.

I hope this helps!

Originally Posted by Snowmom:
Here's what she emailed me:

Yes, there are protections in place by the State of MN to allow this. Here’s a link to the Revisor’s website, as well as the language shown there. The citation is 245A.14 Subd. 1:

https://www.revisor.mn.gov/statutes/cite/245A.14

245A.14 SPECIAL CONDITIONS FOR NONRESIDENTIAL PROGRAMS.

§ Subdivision 1.Permitted single-family residential use. A licensed nonresidential program with a licensed capacity of 12 or fewer persons and a group family day care facility licensed under Minnesota Rules, parts 9502.0315 to 9502.0445, to serve 14 or fewer children shall be considered a permitted single-family residential use of property for the purposes of zoning and other land use regulations.

It is unlawful for HOA’s to attempt to tell homeowners that they cannot operate a family child care program in the Association. They can try to have language in their own bylaws, but it won’t hold up in a court because they cannot overstep MN State Statute.

I hope this helps!

Thank you!!! Very MUCH appreciated!!! likethis

Originally Posted by Blackcat31:
Thank you!!! Very MUCH appreciated!!! likethis

YW!
I hope she can appeal it.

I do adore my licensor- she's always willing to help out!

In Texas- if the "group home" qualifies as a "community home" under Chapter 123 of the Texas Human Resources Code, the use of the home cannot be restricted by the City or by private deed restriction. Human Resources Code Section 42.002 includes distinct definitions for "child-care facility," "general residential operation," "foster group home," "foster home," "day-care center," "group day-care home".
http://www.jgradyrandlepc.com/local-...p-homes-texas/

Group Home seems to fall under foster care but "Community Home" appears to fall under Daycare/Childcare or residential care facility which then appears to grant state protection. 2-18 (5) https://capitol.texas.gov/tlodocs/74...l/HB02391I.htm

You should go to your city clerk and see if you can attend a planning and zoning meeting to ask in person. I would be interested to see what your zoning board says regarding what your state protects as a community home and their local ordinance in regards to your HOA.

https://www.daycare.com/forum/showthread.php?t=78351

Reply from Licensing rep in Texas...now running out of options and very frustrated. We are going to HOA meeting next week and we have been given a one on one time with board. Not sure if this a right step.

reply from our REP -
Unfortunately there is nothing that Child Care Licensing can do. You would need to contact your home owners association and discuss the matter with them. Sorry.

I had written to our county engineering dept and received below reply. Not sure what is the impact of this in our situation.

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Your lot is circled on the attached recorded plat of your subdivision. Per the recorded plat, there are no single family restrictions so this would be considered an unrestricted lot. Harris county has no objections for your home to be used as a child care facility as long as you meet our fire code requirements. Harris County does not enforce deed restrictions. The dispute between you and the HOA is a civil matter which we do not get involved.
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Originally Posted by sunilnpendse@hotmail.com:
I had written to our county engineering dept and received below reply. Not sure what is the impact of this in our situation.

--------------------------------
Your lot is circled on the attached recorded plat of your subdivision. Per the recorded plat, there are no single family restrictions so this would be considered an unrestricted lot. Harris county has no objections for your home to be used as a child care facility as long as you meet our fire code requirements. Harris County does not enforce deed restrictions. The dispute between you and the HOA is a civil matter which we do not get involved.
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I took that as meaning they have no jurisdiction over whether or not your HOA does or doesn't allow you to operate a child care from your home.

The state/county would only have input on the licensing regulations.

When is your scheduled meeting with the HOA suppose to take place? Please keep us updated as to what happens.

Good luck!

I am now consulting with a lawyer and may not talk to HOA immediately. I know this may be a long shot but thought of worth taking it before any further steps.

I am not sure how other licensed childcare homes / registered childcare homes in my vicinity are running even though they are also under HOA. May be I should talk to some of them to see if they faced similar situation.

I will keep you all posted.

Hi I have a similar situation .
I have a licensed home daycare in North Carolina. I have 4 kids and 3 cars coming everyday and one of my neighbor complained about too much traffic. HOA asked me to stop my business. Our covenant allows business if there is no sign, solicitation, no excessive cars in the neighborhood. I am also looking for a way how I can run my business without HOA stopping it.