Did HOA wait too long to sue a daycare?

This is a question and answer website with members around the world. Your question is not at all clear. What is SC? What is HOA?

SC = South Carolina. It's a state in the United States of America, which is on the continent of North America.

HOA = Home Owners Association. An organization in a neighborhood that governs rules and regulations to ensure certain standards of living for all residents living there.

Most day care centers don't allow over 5 children. How much traffic could there be?

I don't see anything here as "open and shut" either way. The courts would have to determine is 2 years is enough to invoke the doctrine of latches and in doing so would have to consider if the fines that have been imposed during that time were actual attempts to bring about resolution to the problem or if they were just an accepted "pay off" for allowing it to continue.

2 years seems like an awfully short period of time to invoke latches to me but... anything is possible.

The daycare has had 2 years of fines, but close to 4 years of wrangling with the HOA. Letters of warnings, etc.
Four years ago, the builder was still running the neighborhood and he started to take her to court. The citizen board took over at that time, and when they received the case they voted to drop it. It comes across as very clumsy enforcement, rather than methodical and procedural. This is why I'm thinking the HOA will lose, because their actions haven't come across as being serious and purposeful.
To make matters even more fun, there is another known daycare in the neighborhood that hasn't been cited at all!
Thanks for info. on doctrine of laches.

Purpletrator
Purpletrator, welcome to A2K.

I have over 20 years of experience with homeowner associations in California. First as a homeowner and president of the board of directors. Second, as part of the management team of a master association with 3000 homes in 20 HOAs. (Retired in 2002.)
http://www.harborbay.org/homepage/index3.html

The first thing to do is to find out what South Carolina law requires for the operation of child care facilities in private homes in residential neighborhoods. California law prohibits banning childcare facilities in such neighborhoods provided they are operated according to state law and an HOA's rules. I don't know South Carolina's laws.

The South Carolina Department of Health and Human Services (SCDHHS) is responsible for the administration of the federal and state funded child care program. Its role is to enhance the viability of South Carolina by improving the health and social status of South Carolina families. Within this broad mandate, the Department is responsible for increasing the quality, affordability, and availability of child care services in the state. SCDHHS meets this responsibility by administering the Advocates for Better Care (ABC) Child Care Program. The purpose of the program is to improve quality, affordability, and availability of child care services statewide.

The second thing to do is to read your HOA's covenants, conditions and restrictions (CC&Rs), to learn any restrictions for homeowners and how the Board may enforce it's rules. There should be a section regarding what types of businesses, if any, can be operated within the HOA's property. Often, CC&Rs are not updated to comply with changes in state and county laws. If this has happened in your HOA, the CC&Rs should be revised to be brought into compliance.

Following is a sample of a Hayward, California CC&Rs regarding day care facilities in an HOA:

"DAY CARE CENTER. A facility which provides non-medical care to 15 or more children and/or adults in need of personal services, supervision, or assistance essential for sustaining the activities of daily living or for the protection of the individual on less than a 24-hour basis. May include pre-schools, infant centers, and extended day care facilities. DAY CARE HOME. A single-family residence which is occupied and used as such and
provides non-medical day care on less than a 24-hour basis to children and/or adults. Day care home must be State-licensed, and may be either one of the following:

a. Small Day Care Home. The use of a single-family residence to provide day care to eight (8) or fewer persons, including any children under the age of 10 years who reside at the home.

b. Large Day Care Home. The use of a single-family residence to provide day care to 8-14 persons, including any children under the age of 10 years who reside at the home.

Generally, if the HOA's board of directors does not take action against a violation of the CC&Rs (and state and country laws) by a homeowner, it is hard to take action after a period of time as the failure to act implies consent. The CC&Rs may specify time limits for such action.

Another thing to avoid is to be sure the neighbor complaints are not basically about the homeowners being Indian. Racial prejudice will make legitimate complaints harder to establish.

I hope this will help you find the information you requested.

BBB

Thanks, Bumblebee. I am aware that California HOA's cannot prohibit home-based daycares.
South Carolina, conversely, has no such law.
Our covenants say the homes are for residential purposes only, "and no business may be conducted on any part thereof." So there's no mistaking the meaning.
I'm surprised the HOA didn't make use of state inspectors to try to shut this daycare down. It's a no-cost way to move things forward. If a fire marshall inspector had come out, or a DSS worker, perhaps a citation or cease/desist could have resulted if things weren't shipshape.
I'm told she does run a very good daycare, but that's cold comfort to the residents next-door and across the street who are trying to back their cars out of the driveway at the same time parents are dropping their kids off. I feel bad for these residents, as they have paid HOA dues for all these years and have been afforded no protection by the very agency that is supposed to be enforcing these things.
Now after about 4 years the HOA is finally going to push it forward and take it to court.... and I'm thinking they'll lose because they waited too long and did such a half-baked job of dealing with this. A lot of money down the drain.
A lot of HOA websites advise that when a violation/issue occurs, you need to JUMP ON IT RIGHT AWAY and don't let it linger. Clearly that didn't happen in this case.
Don't these things usually get settled out of court, anyway? How many of these things ultimately get heard by a judge? I'm thinking not many.

The concept of latches is that something, while not permitted, is allowed to continue and by virtue of being allowed to continue, has become accepted. Sending warning letters and such would be an indication to the court that the HOA was attempting to resolve the issue prior to seeking court action and has taken stronger and stronger steps along the way finally ending in court - IMO, most courts would see that as a good thing and weigh it in favor of the HOA.

The question, to me anyway, would be whether or not the continued operation and payment of monthly fines for the last 2 years has become considered a normal, accepted activity.




It'd be hard to say how a court would view that. Circumstances could be different (the rule could have been implemented after the other daycare center started operating and they might be grand-fathered) and generally "the other guy did it too!" isn't an acceptable argument... But it could be evidence that the HOA is acting out of malice toward this one daycare provider too.