Asked in Real Estate Law for Idaho

Q: Am I able to open an in home daycare when HOA says no but state and the city say yes?

I am trying to open and in home daycare. I have been approved to apply and just waiting for background check clearance and the inspections. I have also spoke with my city/county about local compliance and within my city and zoning I am permitted to run a family/group daycare residentially and commercial. My HOA though says "all buildings shall be improved and used solely for residential use. No business or home occupation shall be conducted from said dwelling structure or Improvement exclusive of grantors use thereof, including, without limitation, used by grantor as a sales office intended for the sale of building Lots or new homes thereon"

Am I able to go through with this?

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1 Lawyer Answer
Kevin M Rogers
Kevin M Rogers
  • Boise, ID
  • Licensed in Idaho

A: The short answer is "NO." If you will permit me to diverge. Idaho Law permits weapons to be carried without a permit, openly. A HOA might want to limit when patrons could carry weapons around. This would be an HOA decision. HOA or Home Owners' Associations, are throwbacks from old German law. Builders and developers could keep out those it deemed "undesirable" or for lots of different, intolerant reasons. Courts nowadays will tell you that they hate HOA's as a "restraint" on alienation of property, but they WILL uphold a rule propagated by an HOA, as long as it doesn't deny the homeowner "due process," or the "right to be heard." The more the Rules of the HOA look like a law book, in complexity, the more likely it will be to be upheld, because it encompasses a lot of "due process," (14th Amendment stuff). I personally believe that you will lose, if you push it into the Courts, because you're talking about a "special use permit." A "special use permit" is only permissible in Idaho, if a certain number of households on either side and across the street, indicate their support for the business. This stricture exists because of the obvious increase in traffic "problems" that occasion the use of a home as a business, in a neighborhood. I would highly recommend getting the HOA to approve it, before relying on any general provision of Idaho law.

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