By Eric Glazer, Esq.

Published June 24, 2013

      I have a confession to make.  As I write this column, I may be breaking the law in my own community.  I'm actually doing work while sitting in my home on the computer.  Suppose my governing docs say however that my home can only be used for residential purposes and not for commercial purposes?  Am I doomed?  Do I need to worry about fines, or worse yet, a scary warning letter from one of those attorneys that practice association law?

      Each day that goes by we become more and more technologically advanced --- we're all walking around with cell phones where you can speak with and even see people live wherever they are in the world.  We can send e-mails from our home or phone, we have powerful computers in our home that perhaps used to only be located in our offices --- and I'm certainly finding that even lawyers feel that they can work from home and actually get more done than if they came into the office and have to put up with all of the distractions.

      As a result, there's no question that we see an increase in people are starting all of these home based businesses.   After all, the start up expenses are minimal --- and of course there's no office rent to pay.

      But what about all those clauses in our association's governing documents that say that a unit owner is not allowed to conduct a business from their home?  What exactly does that mean?  How far can someone go without actually violating such a provision?  The answer lies in an arbitration case called The Inlet at Ponte Verde Beach v. Bissell, ---- which was actually decided by Bruce Campbell who is now The Florida Condominium Ombudsman.   Here are the facts of the case----   the occupant performed work activities in the condo unit consisting of paperwork, phone calls and exchanging e-mails. No customers visited the unit. No other employee visited the unit. No business professionals or collectors came to the Unit.  There was no shipping or receiving of products at the Unit. There was no signage or other evidence of the office use of the Unit on the exterior of the condominium.

      The next door neighbor of the Unit complained however that he hears frequent ringing of telephones and loud conversation from the unit.  But, other than telephones and conversation, no activity in the Unit is perceptible to the outside or common elements.  The first thing the arbitrator said was: — frequent telephone rings and loud conversation — are not inconsistent with purely residential use.  And he's right.  There are plenty of people who are not operating any business in their home --- yet are on the phone all day long yapping and yapping.  (He's right.  I have a 16 year old daughter home for the summer)  So --- lots of phone calls being made or received has nothing to do with whether or not the unit is being used for commercial purposes according to this arbitrator.

      The arbitrator then cited to an old Florida Supreme Court case decided in 1925 which held that: "Instances are not lacking in which other courts have held or intimated that property restricted to use for residential purposes, so long as if is in good faith used for such, may be also used to a minor extent for the transaction of some classes of business or the following of some professional pursuits so long as the latter use is in fact casual, infrequent, or unobtrusive and results in neither appreciable damage to neighboring property nor inconvenience, annoyance, or discomfort to neighboring residents.

      So even though computers didn't exist in 1925, the issue of using your residential homes for commercial purposes has been an issue in this state for nearly 100 years.  The arbitrator then cited to another Florida case referred to as the Hidden Harbor case which held that: The restriction in Petitioner's Declaration, which had a limited reference to “non-commercial purposes”, does not clearly prohibit a home office. The provision must be strictly construed to allow a unit owner to use his property as he pleases, so long as he does not disrupt the integrity of the common scheme.  

      The arbitrator then did the old fashioned thing and actually pulled out Websters dictionary to look up the word "commercial" because the declaration prohibits "commercial" use.  The first meaning listed for “commercial” in Webster's II New College Dictionary (1995) refers to “commerce” — “the buying or selling of goods”. BASED UPON THAT DEFINITION, THE ARBITRATOR RULED THAT THE PROHIBITION OF THE DECLARATION DOES NOT APPLY TO A HOME OFFICE BUSINESS WITHOUT INVENTORY, MERCHANDISE OR PHYSICAL INTERACTION WITH CUSTOMERS.

      So there you have it.  If there is no inventory, merchandise or physical interaction with customers --- an association is probably wise not to oppose a unit owner who does some business out of their home.  I can tell you that as we move more and more to a work force where so many people are now working from home --- look for this type of issue to be litigated more and more between associations and their unit owners or occupants.