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Lucy, Esq.
Lucy, Esq., Lawyer
Category: Real Estate Law
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Experience:  JA Mentor
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Can we do swimming lessons in our back yard pool when the CC&Rs

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Can we do swimming lessons in our back yard pool when the CC&Rs say "no home based business in the Residential Area"?

If no, is there any argument that it is something that saves lives and that 1-in-4 people have some sort of home based business modernly - especially in hard economic times?

I think the real issue is the HOA offers swimming lessons in one of our community pools and makes money off of it and would like to see ours stop.

My name is XXXXX XXXXX I'd be happy to answer your questions today.

If the CC&Rs say that no home-based businesses are allowed, unfortunately, a homeowner is not able to establish a business. The law gives the HOA sole discretion to make rules and regulations regarding the community. The only way to invalidate a rule is to show that it serves no legitimate purpose. Even though there are a lot of arguments as to why home-based businesses should be allowed, if there is any legitimate reason that they shouldn't, such as increased traffic in the community, the regulation will be upheld.

For that reason, a homeowner may have a better chance for success if there were some way to show that the lessons were not a home-based business. You may want to look at IRS guidelines to determine whether the lessons could qualify as a hobby rather than a for-profit business.

The other option is to seek to have the CC&Rs changed. The documents themselves should say what th requirements are for amendment - it could be a simple majority of homeowners, or it could be a super majority. Then, you would have the option of circulating petitions, putting in on the agenda at a homeowners' meeting and calling for a vote. It's not an immediate solution, but it could allow you to continue to give lessons in your pool.

If you have any questions or concerns about what I've written, please reply so that I may address them. It's important to me that you are 100% satisfied with the service I provide. Otherwise, please rate my service positively so that I get credit for answering your question. Thank you.
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