By Florence King, Esq. / Published January 2023
The COVID-19 pandemic was a pivotal moment in time for many of us. Life as we knew it ceased to exist for a significant period of time. For most, the normal they once knew was never to return. Many things that were taken for granted, like large gatherings with family and friends, were no longer a simple part of our way of life. One of the mostsignificant regular life changes was the mass transition of people being required to work from home. This shift caused many industries to adjust and facilitate having people work from home and allowed businesses to function as virtual organizations.
Many Floridians reside in community associations, and a strong majority of the Florida community associations have provisions within their governing documents that prevent residents from engaging in any kind of business activity within their homes. Nonetheless, when the pandemic hit and a state of emergency was proclaimed, associations chose not to enforce these regulations. As the new post-pandemic normal sets in, many businesses are continuing to either operate remotely or offer a hybrid option to their employees.
During the pandemic, the associations relied on the state of emergency powers to refrain from enforcing their regulations preventing residents from conducting business from home. With the state of emergency now over, associations are faced with the dilemma of balancing the accommodation of these community residents who are still required to work from home while honoring and enforcing the restrictions of the association’s governing documents.
Historically, the original intent of most restrictions regarding working from home was to limit in-person inconveniences to the other residents within the community (like excessive traffic, lack of parking, and noise violations). For example, operating a daycare from a home within an association has a high likelihood of not only creating serious inconveniences to the other residents but also increasing the association’s exposure to additional liability.
Short-term rentals are another common issue as it increases the transient nature of people coming into the community. Short-term guests might not care for the property or community as much as a long-term resident. Associations have been working hard on regulating these types of issues by amending the restrictions within the association governing documents. Businesses of this nature are very likely to breach an association’s governing documents as such business activities are most likely to qualify as a nuisance by “interfering with” others’ peaceful enjoyment of their property.
However, this does not account for the majority of people now working from home. Many people who are now working from home are in different industries and professions where their work is more unobtrusive. These types of business activities are much more subtle and quiet, pose no threat of inconvenience to other residents, and are unlikely to cause a disturbance or nuisance. Nonetheless, a plain reading of the language in most association regulations makes even these passive activities a violation of some governing documents due to their broadly worded nature. A typical provision would read, “The units shall be used for single-family residences only. No business or commercial activity shall be conducted in or from the unit.”
The reality of the post-pandemic era is that associations are inadvertently being pressured to contemplate these societal changes and wrestle with whether they want to adapt to these new needs of the residents within their communities. In most situations, many of those who engage in work activities from home have very little choice in the matter. There are a multitude of employers who have offered no other alternative but to work virtually. For solo business owners, many are limited due to financial challenges they faced during the forced shutdown and the new constraints of staying gainfully employed.
Most business activities that are run from homes can be divided into two categories: passive business and those that, by nature, bring an external impact to the community. Businesses that bring an external impact are those that associations may want to restrict and/or ban. Examples of these businesses include daycare workers, hair stylists, and fitness instructors. Such businesses have the propensity to vastly increase significant vehicular traffic and pose parking issues. Other home-based businesses impact the community’s visual aesthetic due to the requirement of commercial vehicles. Others also pose safety threats. Businesses that require on-site inventory and the stockpiling of chemicals or other flammable/hazardous materials in residences and garages can be very problematic to the overall community and rightfully require restrictions for the safety and quiet enjoyment of other residents of the community.
The second category of business activities are those that are conducted within the privacy of homes. These businesses pose little to no external community impact at all and do not interfere with the peaceable living of any other residents within the community. Most of these jobs are mostly administrative in nature and predominantly involve reading, writing, telecommunication, and video conferencing. On the surface, these jobs do not necessitate any oversight by the association. However, broadly defined business and commercial restrictions require associations to consider all business and commercial activities as potential violations of the association governing documents.
The pandemic has caused a significant societal shift causing older, broadly written governing document restrictions on working from home to become outdated. Associations need to take action to protect the interests of the community at large. However, such action should be a prudent approach that is guided by reason. Rather than attempting to restrict all business activities in a community, the better option is to specifically delineate in the governing documents the types of activities that will not be allowed. The focus should remain on maintaining the quality of life for the community at large.
So what can a community do to adapt to the new, post-pandemic era? With the societal changes brought on by the pandemic, it is paramount that associations take the time to review and evaluate their governing documents’ business and commercial restrictions. Broadly defined restrictions should be better defined to minimize potential covenant enforcement challenges and protect the association.
Amending governing documents can be tedious, time consuming, and costly, but the potential liability and negative social impacts could prove to be far worse. In the short term, it may be possible to adopt additional rules and regulations to better define what is allowed. What is certain is that working from home has become and will continue to be more commonplace than it was before the pandemic. Being proactive, reviewing the business and commercial restrictions, and, if necessary, taking the initiative to better define what your community allows in terms of working from home is in the best interest of everyone in your community.
Attorney at Law, Becker
Florence King concentrates her practice on the representation of condominium, homeowner, and cooperative associations in the state of Florida. Her experience includes handling collections and foreclosures, vendor contracts, drafting and amending governing documents and enforcing association covenants, assisting associations with management issues and other association-related matters. Ms. King is also a licensed mediator and a community association manager. A member of the Florida Bar since 2006, she is also licensed to practice in all three U.S. Districts in the state of Florida.