Absolute Standard Versus Association Impact
May a Home and/or Unit within an Association be used for a business purpose and, if not, what would constitute a prohibited business use. Many Associations’ Master Deeds or Declarations contain provisions that purport to prohibit Association residents from conducting any business in their homes.
Twenty years ago conducting business at home was not as hot an issue as it is now. Further, disputes regarding conducting business out of the home often involved activities that were easily identifiable as businesses for example, music schools and dentist’s offices. However, the proliferation of personal computers, modems and fax machines combined with early retirements, corporate downsizing and alternative working arrangements for women and men with children increase the probability that residents will attempt to conduct some sort of business out of their homes.
As the following case examples demonstrate, covenants restricting use of units and/or homes to residential use are upheld almost without exception.
In The Four Hundred Condominium Association v. Gatto the court held that a restrictive covenant prohibited doctors from maintaining offices in certain areas of a condominium complex; in Diefenthal v. Longue Vue Management Corporation the court held that restrictive covenants banning commercial activities would be enforced although some commercial activities were acquiesced to by the adjacent property owners; in Greater Middleton Association v. Homes Lumber Co. the court held that a Covenant included in the majority of the deeds to lots in a subdivision over a period of forty-five years restricted the use of the lots to “residential purposes exclusively”; in Walton v. Carnigan the court found that when the restrictive covenant language is clear and unambiguous it will be enforced; therefore, operation of a day care center violated the restriction on commercial activity; in Fick v. Weedon the court found that Deed restrictions were not ambiguous in restricting use of the property to a private dwelling for one family, therefore, use of the property as a bed and breakfast violated the restriction and was enjoined; in Fox v. Smidt the court found that phrase “residential lot” in a subdivision indenture precluded the use of a building for commercial purposes, even though the building sought to be used as a warehouse had the exterior appearance of a residence; in Metzner v. Wojdyla the court found that a “bright line” rule should be applied to prohibit any business activity in a subdivision subject to a restrictive covenant providing that the property may be used for residential purposes only; in Gerber v. Hamilton the court found that enforcement of a restrictive covenant regarding home business depends on whether the residential character of subdivision is compromised. In Gerber a beauty salon was prohibited; in Robbins v. Walter the court found that the use of a residence as a bed and breakfast violated a covenant restricting use of lots to noncommercial use.
The above decisions do not involve decisions by New Jersey Courts. However, New Jersey has long recognized and upheld restrictions limiting use to residential purposes. This is demonstrated by the 1924 case of Dottsloff v. Hockstetter where the limitation of use to residential purposes was upheld and a corner grocery store was prohibited.
Though the above cases upheld restrictions against conducting business activity, they did not provide a framework for determining what constituted use of property for a non-residential or business purposes. Instead, they applied a “we’ll know it when we see it” analysis. However, two of the above courts did supply some guidance. In the Metzner case a “bright line” rule was applied to prohibit any business activity in a subdivision subject to a restrictive covenant providing that property may be used for residential purposes only. The Metzner Court tackled the analysis by evaluating the home owner’s actions. For example, a major factor considered in determining whether the defendants were “conducting a business” was whether they accepted money for services. Since accepting money for services constituted “conducting a business” the home owners’ activity was banned.
However, through a more subtle analysis, largely arising because of specific governing document language, the Gerber Court analyzed restricted action by reviewing the impact the home owners’ activity had on the community. Here, factors that the Court found should be considered when determining whether a resident was conducting a professional or prohibited commercial activity included:
- Whether the residential character of the subdivision is compromised
- Whether client visitation is required
- Whether the activity produced additional traffic, noise and activity
The way many documents are written, it appears that Courts could apply a “bright line” test and hold that any activity that is not strictly residential is prohibited as in the Metzner case. This would eliminate the home/office fax/computer arrangement, even if it had no impact on the community.
However, New Jersey courts have read a reasonableness requirement into restrictive covenants and their enforcement. See, Billig v. Buckingham Towers Condom Association I, Inc., 287 N.J.Super. 551 (1996). It is likely that application of this “reasonableness factor” will cause courts to evaluate “doing business,” not by a “bright line” test but by more of a case by case “community impact” test using factors such as the three listed above. This is even more likely in light of the growth of the internet, fax machines and computers. Further, this “impact” standard frees the Association and its manager from the virtually impossible task of enforcing a “bright line” standard. Rather than having to ferret out every home/office, the Association will likely only have to intervene where a community impact is created.
In conclusion, in enforcing ‘residential purposes only’ restrictions, board members should be aware that Courts may evaluate ‘conducting business’ by varied standards. Until a clear decision is made regarding ‘conducting business’, associations must weigh the value of enforcing a ‘bright line’ standard for ‘conducting business’ and risk losing an action to enjoin the business activity against the value of enforcing a ‘community impact’ standard and risk being sued for failing to enforce the provisions of the governing documents. In light of the technological progress and societal changes noted above, it is likely that courts will turn to a ‘community impact’ standard to determine what activities are prohibited in communities that restrict activity to residential purposes.