Outdated HOA CCR's

[PracTacPrep]

Jurisdiction

Arizona

Outdated and Irrelevant HOA CCR's (Covenants, Conditions, Restrictions)

What are my options to get this challenged and removed sooner rather than later?

Here's the scenario:

• I've lived in this community since I bought the home new in 2001
• I'm applying for a Federal FireArms Type 1 License to sell new items (no manufacturing, assembly) as an augmentation to a business I already have
• Initially, I would do this at home, an "at-home FFL" (with other long term intentions irrelevant to the current scenario)
• I have a state transaction privilege tax license ("TPT", in place since 2017)
• I have applicable city of Mesa licenses, and would get the "secondhand dealer" IF NEEDED (again, other long term intentions irrelevant to the current scenario)
• I have zoning approval from the City of Mesa, which mandates compliance with with their zoning regulations on visitor parking, signs, long term storage, etcetera

However, the HOA CCR's, dated September 17, 1998, and not changed since state the below.

"Section 8. 1 Permitted Uses and Restrictions - Residential. The permitted uses, easements, and restrictions for all Property covered by this Declaration shall be as follows:

(a) Single Family Residential Use. All Lots shall be used, improved and devoted exclusively to single family residential use. No gainful occupation, profession, trade or other non-residential use shall be conducted thereon..." (I can send the whole document)​

Because of this, while the HOA carefully avoided saying I could not run a business out of my home, they did say they couldn't provide me a statement saying that I COULD. My concern is the ATF may or may not ask, and if they ask, it could result in my being denied the FFL.

The HOA also stated:

"the CCR's were put in place when the community is developed and cannot be changed without 75% of the homeowners voting to amend them."​

For clarity, according to the HOA, it's not 75% of those that are voting, it's 75% of actual homeowners and they only get about 15% to ever vote (info from them in an email).

"... Changing the CCR's requires 75% of the members to vote. I'm sorry but there is no easy way to change the CCR's. It's a process that takes several years to accomplish. That's one of the reasons some of the information is no longer relevant."​

Based on what I know, it seems to me that these CCR's have NEVER been updated in over 22 years.

MY PROBLEM
As I seek to get all possible approvals in place before ATF inspection for the FFL, in my interactions with the Community Association Manager, she highlighted the following part: "... No gainful occupation, profession, trade or other non-residential use shall be conducted thereon."

While avoiding clearly saying I cannot run a business out of my home, HOA stated:

"... The Board cannot approve something which is against the CCR's if that is what you are asking. They cannot put anything in writing to give you approval for something that is clearly against the CCR's."​

If the ATF doesn't care, doesn't ask about HOA guidelines, no harm no foul. BUT, if the ATF asks about HOA guidelines, this will be an obstacle. I'm trying to avoid that obstacle.

In the most extreme scenario, this is how I fear the ATF license investigator may interpret the above HOA CCR's (as written) as restricting the following:

• Working from your home (occupation) for employment (gain) is NOT allowed
• Working from home for your personal business, i.e. working for yourself (profession, trade, etc) is NOT allowed
• Potentially "gainful" services conducted out of your home, like in home childcare, music lessons, swimming lessons, tutoring, etc., are NOT allowed

Problems with this outdated guideline:

• The CCR's have not been updated to reflect modern times and modern technologies
• This portion of 8.1 is not and has not been enforced; it's obvious and apparent that much, if not most of the neighborhood has worked from home for most of 2020 and all of 2021 due to COVID-19 restrictions with no restriction from the HOA
  • Given the previous unenforced regulation through non-action, it appears to be the de facto rule that that it is acceptable to work from home, run a business from your home, perform services for gain from your home
  • Also, multiple of my neighbors run their own business from their home and have for years
  • It's happening all through the community and not enforced
• Enforcement of this is a form of "deprivation of means" (my own term, I don't know the proper legal term)

What makes my situation different, and why I potentially cannot simply ignore this portion of Section 8.1 like most of the community and the HOA management team has, is that the ATF may ask about HOA approval, and could use it as a reason to deny my license.

Given de facto un-enforcement of this provision, outdated language, and potential restriction of income, what are my options to address this?

 

[Zigner]

Sounds to me like, according to the letter of the CCR's, you need to get the CCR's amended/changed.
Of course, not everything always works per the letter of the "law" (rule, etc.), so it may not really be a big deal.

Saying they are depriving you of the right to support yourself is a non-starter. One is allowed to waive certain rights, and you agreed to the terms when you moved in.

You may wish to speak to an attorney...I believe the NRA has some sort of Civil Rights Defense Fund - maybe start there.

 

[adjusterjack]

Given de facto un-enforcement of this provision, outdated language, and potential restriction of income, what are my options to address this?

Options:

1 - Get 75% of the owners to change the CC&Rs.
2 - Spend lots of money on a lawyer to file a lawsuit petitioning the court to reform the CC&Rs. That's gonna be a waste of time and money.
3 - Take your chances with ATF.

You bought into an HOA. You knew or should have known that you agreed to be bound by the CC&Rs as they existed when you bought. The CC&Rs are your contract with the HOA.

You may be successful in getting your FFL despite the recalcitrance of the HOA but the HOA will still have the right to enforce the restrictions on running a business in your home and can attempt to shut you down by fining you, putting a lien on your house or taking you to court.

The CC&Rs trump any licensing or laws that allow you to run a business from your home.

You could have a defense if you can prove, not just say, that others are running businesses out of their homes and the HOA is engaging in selective enforcement. Understand that working from home is not the equivalent of running a business.

 

[army judge]

It might end up being far more cost effective to rent a small office, than to spend good money fighting the "machine".

 

[zddoodah]

The CCR's have not been updated to reflect modern times and modern technologies

I'm curious which technologies you're referring.

This portion of 8.1 is not and has not been enforced; it's obvious and apparent that much, if not most of the neighborhood has worked from home for most of 2020 and all of 2021 due to COVID-19 restrictions with no restriction from the HOA

• Given the previous unenforced regulation through non-action, it appears to be the de facto rule that that it is acceptable to work from home, run a business from your home, perform services for gain from your home
• Also, multiple of my neighbors run their own business from their home and have for years
• It's happening all through the community and not enforced

Sounds like a "better to ask for forgiveness than for permission" situation. And, in fact, it does not appear you're being told by the HOA that you may not do what you seek to do. In any event, little, if any, of this is relevant to your situation.

Enforcement of this is a form of "deprivation of means" (my own term, I don't know the proper legal term)

Being that it's a term of your own invention, it doesn't really help the discussion here. That said, if you're suggesting the regulation deprives you of the right to earn a living, it most certainly does not and, even if it did, you agreed to it when you bought into the community. Example #983 of why buying homes controlled by HOAs is a bad idea.

Given de facto un-enforcement of this provision, outdated language, and potential restriction of income, what are my options to address this?

I'm not sure why you think the CC&Rs are "outdated" (or why that matters even if they are), but your options seem to be the following: (1) seek a vote to change the CC&Rs; (2) take your chances; (3) move; or (4) abandon your present plan.

 

[retic]

Sounds like a "better to ask for forgiveness than for permission" situation. And, in fact, it does not appear you're being told by the HOA that you may not do what you seek to do. In any event, little, if any, of this is relevant to your situation.

Speaking as a home-based 07/C2 FFL, this won't work. The ATF IOI absolutely will ask for a copy of the HOA CCR's as part of the application process.

OP would be better off trying to get the CCR's changed, even if he needs to politely ask the 85% of the other homeowners who don't typically attend HOA meetings for their proxy so he can vote on their behalf when the issue does come up on the agenda.

 

[PracTacPrep]

Options:

1 - Get 75% of the owners to change the CC&Rs.
2 - Spend lots of money on a lawyer to file a lawsuit petitioning the court to reform the CC&Rs. That's gonna be a waste of time and money.
3 - Take your chances with ATF.

You bought into an HOA. You knew or should have known that you agreed to be bound by the CC&Rs as they existed when you bought. The CC&Rs are your contract with the HOA.

You may be successful in getting your FFL despite the recalcitrance of the HOA but the HOA will still have the right to enforce the restrictions on running a business in your home and can attempt to shut you down by fining you, putting a lien on your house or taking you to court.

The CC&Rs trump any licensing or laws that allow you to run a business from your home.

You could have a defense if you can prove, not just say, that others are running businesses out of their homes and the HOA is engaging in selective enforcement. Understand that working from home is not the equivalent of running a business.

Keeping in mind that it starts with "gainful occupation", which means "a job or profession", and basically the entire neighborhood has been working from home most of 2020 and all of 2021, does this change your view?

 

[PracTacPrep]

I'm curious which technologies you're referring.



Sounds like a "better to ask for forgiveness than for permission" situation. And, in fact, it does not appear you're being told by the HOA that you may not do what you seek to do. In any event, little, if any, of this is relevant to your situation.



Being that it's a term of your own invention, it doesn't really help the discussion here. That said, if you're suggesting the regulation deprives you of the right to earn a living, it most certainly does not and, even if it did, you agreed to it when you bought into the community. Example #983 of why buying homes controlled by HOAs is a bad idea.



I'm not sure why you think the CC&Rs are "outdated" (or why that matters even if they are), but your options seem to be the following: (1) seek a vote to change the CC&Rs; (2) take your chances; (3) move; or (4) abandon your present plan.

Technologies like the ability to work from home over high speed data connections over a secure VPN tunnel. Video conferencing. VoIP phone systems (software based phone). Instant Messaging. File Sharing. Cloud. I work in IT, 28+ years now, and the technology has rapidly advanced since these CCR's first went into effect in 1998. "Work from home" is now a real thing versus 1998, it was a rare occasion for the average corporate employee.

 

[adjusterjack]

Keeping in mind that it starts with "gainful occupation", which means "a job or profession", and basically the entire neighborhood has been working from home most of 2020 and all of 2021, does this change your view?

No. Not a bit. Working from home, doing remotely what you did at your office as an employee is not "running a business."

You're going to have product shipped to your house for resale. The truck will come frequently and unload packages at your door or into your garage. You will sell that product and ship to buyers. The truck will come frequently and load up those package. You conceivably could have customers coming to your house to buy product. That's what running a business is and that's what the CC&Rs are prohibiting.

Notice I write about product. It doesn't matter if it's guns or computers or microwave ovens or auto parts. If you want to point fingers at other homeowners who are "running a business" find the self employed people who have day care, care homes, sell Amway, repair cars, build furniture for sale, etc. You're not going to be able to defend yourself by pointing a finger at employees of companies who are doing their jobs remotely.

 

[Tax Counsel]

What makes my situation different, and why I potentially cannot simply ignore this portion of Section 8.1 like most of the community and the HOA management team has, is that the ATF may ask about HOA approval, and could use it as a reason to deny my license.

HOA restrictions are matters of contract. They are not legal restrictions (i.e. restrictions set by statute or ordinance). So far as I recall, nothing in the federal statutes or ATF regulations makes HOA restrictions something that matters for the FFL. So I suggest you first consult an attorney in your state who handles firearms matters for advice. I suspect you won't need to worry about the restriction with regards to getting the license. Rather, the HOA restriction is instead something to worry about should your neighbors want the HOA to enforce the restriction. If your activity doesn't draw lots of customers to your home, create a lot of noise, etc, then your neighbors may not care and you won't have an issue.

 

[PayrollHRGuy]

If the ATF doesn't care, doesn't ask about HOA guidelines, no harm no foul. BUT, if the ATF asks about HOA guidelines, this will be an obstacle. I'm trying to avoid that obstacle.

I can tell you with no doubt at all that the ATF will most certainly ask and will care. I have a held multiple FFLs in my almost 6 decades of life and every time I applied for one I had to show there were no zoning or CCRs barring doing business where I was doing it.

 

[adjusterjack]

Speaking as a home-based 07/C2 FFL, this won't work. The ATF IOI absolutely will ask for a copy of the HOA CCR's as part of the application process.

I can tell you with no doubt at all that the ATF will most certainly ask and will care. I have a held multiple FFLs in my almost 6 decades of life and every time I applied for one I had to show there were no zoning or CCRs barring doing business where I was doing it.

A quick internet search yielded similar comments from FFL holders and applicants who agree that the ATF will want (and has wanted) clearance from the HOA about allowing a home based business.

It gets worse. Even without an HOA, many subdivisons have recorded Deed Restrictions from when the subdivision was first created. While there is no HOA to enforce them they can be enforced by any resident against another resident.

I don't live in an HOA. Never will, if I can help it, but this discussion prompted me to check my own recorded deed restrictions which state the following:



Well, no home business (FFL or otherwise) in my future.

Mr PracTapPrep, even if you move to a residence with no HOA you may still be faced with deed restrictions that prohibit home businesses.

 

[zddoodah]

Speaking as a home-based 07/C2 FFL, this won't work. The ATF IOI absolutely will ask for a copy of the HOA CCR's as part of the application process.

Then the OP would seem to be limited to the 1st, 3rd and 4th options mentioned in my prior response, and I'm not sure what other possibility the OP seems to think might exist.

 

[PayrollHRGuy]

@PracTacPrep

You should also be aware that the ATF often will not issue Licenses for "Home Use". Also, many of the distributors will not sell to FFL holders that aren't open to the public.

 

[PracTacPrep]

No. Not a bit. Working from home, doing remotely what you did at your office as an employee is not "running a business."

You're going to have product shipped to your house for resale. The truck will come frequently and unload packages at your door or into your garage. You will sell that product and ship to buyers. The truck will come frequently and load up those package. You conceivably could have customers coming to your house to buy product. That's what running a business is and that's what the CC&Rs are prohibiting.

Notice I write about product. It doesn't matter if it's guns or computers or microwave ovens or auto parts. If you want to point fingers at other homeowners who are "running a business" find the self employed people who have day care, care homes, sell Amway, repair cars, build furniture for sale, etc. You're not going to be able to defend yourself by pointing a finger at employees of companies who are doing their jobs remotely.

Are you a lawyer?

 

[adjusterjack]

Are you a lawyer?

Deflect much?

No, I'm not a lawyer. But that doesn't mean that what I'm telling you isn't valid. Believe it or don't believe it. Your choice. You obviously don't like what you are being told here so you are welcome to go pay a lawyer and see if you can do better.

 

[army judge]

No, I'm not a lawyer. But that doesn't mean that what I'm telling you isn't valid. Believe it or don't believe it. Your choice. You obviously don't like what you are being told here so you are welcome to go pay a lawyer and see if you can do better.

 

[justblue]

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Just to add to this: Still, a man hears what he wants to hear and disregards the rest.

 

[PracTacPrep]

Deflect much?

No, I'm not a lawyer. But that doesn't mean that what I'm telling you isn't valid. Believe it or don't believe it. Your choice. You obviously don't like what you are being told here so you are welcome to go pay a lawyer and see if you can do better.

Am I defecting? Or are you just being overly rude, and answering a legal question when you are not in fact a lawyer. Sounds like my question triggered something in you.

so no, I'm not deflecting, was asking, since you are handing out legal opinion, if you were indeed a lawyer. It turns out you are not.

When I found this forum, I thought, obviously incorrectly, that it was for actual legal advice/opinion/direction by people who actually were lawyers. I'd even have been open if an actual lawyer had said "this advice costs, call my office". I was just looking for options.

See, I figured quickly on that either you weren't a lawyer or you weren't a very good one. you ignored the CCR statement in total and focused on just being arrogant and appearing to be all knowledgeable in your response.

 

[justblue]

Am I defecting? Or are you just being overly rude, and answering a legal question when you are not in fact a lawyer. Sounds like my question triggered something in you.

so no, I'm not deflecting, was asking, since you are handing out legal opinion, if you were indeed a lawyer. It turns out you are not.

When I found this forum, I thought, obviously incorrectly, that it was for actual legal advice/opinion/direction by people who actually were lawyers. I'd even have been open if an actual lawyer had said "this advice costs, call my office". I was just looking for options.

See, I figured quickly on that either you weren't a lawyer or you weren't a very good one. you ignored the CCR statement in total and focused on just being arrogant and appearing to be all knowledgeable in your response.

Did you read the Terms of this site? No? You should have and not wasted everyone's time. If you wanted advice from an attorney then you open the yellow pages and make an appointment with one.