Posts Tagged ‘covenant’

Childcare Vs. Business Use Covenant

August 3, 2012

The courts in Nebraska are reviewing at a conflict that we often see here in Idaho.

Residential covenants sometimes restrict business use.  While this is not controversial when it prevents, say, a Maverick from opening next door, it is common in this part of Idaho for people to run some kind of child care out of their home.  Sometimes it is a “pre-school”, sometimes it has some other name, but the basic facts involve groups of children getting dropped off each day and the homeowner getting paid.  Neighbors face increased traffic and noise, and occasionally, un-permitted use of common property playgrounds and related liability.

According to this article, the Nebraska court found that the homeowners could go to trial on their defense that the association had permitted them to run the business for over 12 years without enforcing the rule.  I am not sure that defense would fly here in Idaho.  Most CC&R declarations explicitly allow for spotty enforcement, and we have a couple of cases that recognize that.  From the local NBC news coverage:

The Wolfs said the association allowed them to run the day care for 12 years and continues to allow others in the neighborhood to runbusinesses from their homes, including the association’s president.

The Nebraska Supreme Court on Friday found that the Wolfs make what a jury might find to be a valid argument.