Dealing with HOA interpretation of rules

[Mark384]

My Bylaws are below and appear to be clear that I cannot rent my  "Lot" for less than 30 days but I am just renting a portion of it.  They wrote this so there wouldn't be weekly home rental but they are trying to use it against me for Airbnb and it doesn't apply based on how I read it.  They are threatening a cease and desist letter but I think they are overstepping.  Thoughts?

Section 3 Prohbition of Renting for Transient or Hotel Purposes.  No Owner shall rent his Lot for transient or hotel purposes, which, for the purposes of this Declaration shall be defined as either a rental for any period less than 30 days or any rental if the lessee of the Low is provided customary hotel services.  Each permitted lease shall be in writing and shall be subject to this Declaration, the Bylaws, and the Rules and Regulations adopted hereunder and any failure of the lessee to comply with the terms of such documents shall be a default under the lease.  Other than the foregoing restrictions, each Owner shall have the full right to lease all or any portion of his Lot, subject to applicable City, State, and Federal regulations.

[Mark384]

what is clear?  Lot is the boundaries of the property.  I am NOT renting the whole house, just the room.  The section was to prevent renting the entire HOME on a weekly basis but NOT a portion of the Lot

[Annette33]

@Mark384 , from a different angle: does your community allow short term rentals, then you have  a strong stand, as community rules supercede HOA rules. (like in San Fran and NY City, it is the city that changed the short term rental rules.) You need to get that permit first.

mostly, such HOA rules limiting short term rentals were implemented before homeowners  started renting through Airbnb, and are antiquitated. Consider the landmark 2014 Surpreme Court ruling - Wilkinson vs. Chiwawa Communities Ass.:

The Court decided that vacation rentals are consistent with RESIDENTIAL use and are not considered commercial use . (usually HOAs say that rentals less than 6 months are commercial use). The Court also decided that such limitation goes against the individual property rights of each owner in the community. Furthermore, HOA regulations must be in accordance with the law of the land at all times, so if your or my community endorses such use of one's property,and we pay transient lodging taxes, what leg does the HOA stand on? Perhaps they are just trying to badger you into submission but know that they don't really have the legal power to enforce it.

Here in my city, they make a big difference if I am at the property at all times myself (I am, even though the apartment I am renting has a separate entrance) or if I am absent. for me, being there at all times, it was really easy to get the city permit, but if I were absent, then all sorts of other stipulations (and fees!) enter the picture, like I need to have an inspection, I need to inform my neighbours, etc.. that is where it could get hairy with an HOA.

So whT is your situation? are you there when you rent out , or not? Good luck!

[Mark384]

I am here when it is rented and in a beach town,  laws are different than NYC or San Fran.  I pay lodging taxes.  The city allows Airbnb but the issue is that my HOA has ambigous Bylaws and per  my friend, the drafter loses if it is ambiguous.  I just wanted to see if others had this issue

[YourHost1]

Mark I am in the same situation have u had any luck, I have stopped all my bookings until I figure out my rights and I too do not rent the whole home, my unit is in Fort Myers would love to know what u have learned since this post from last march

[Wendy-and-Frank0]

@Annette33,

The defendants in the Chiwawa case lost because there was no existing rule within the Association limiting vacation rentals.

I remember this case.  It was a broad ruling with a strict warning.

Most Associations today have EXISTING rules with vacation rentals where Chiwawa did not, so Associations with existing rules have great latitude in limiting rentals.

I believe the Chiwawa case is 10 years old.  Associations across the country have taken the ruling into account when writing current-day Bylaws.

Wendy

Real Estate Agent

JD, Suffolk University, Boston  1986

[Robin697]

and what if there are no current laws restricting rental but now they are going to, a year after I've been renting, vote new bylaws in.  Can I be grandfathered in?  

[Robin697]

Thank you Annette - the County I live in has no regulations for or against Airbnb at this time.  Denver does but not the county my HOA resides in.  I like your information and will dig more.  As well - there are not any current HOA laws in place around this.  The HOA is looking to change the bylaws to address. 

 I've been operating for the past year - have had over 100 guests without issue and seem to be the only home in my HOA listed under Airbnb.  My question is - if I've been dependant on this and have been operating (within the current rules of the HOA and the county), can they simply just change the rules that we've been operating within? And if they do, can we fight to be grandfathered in?  Please let me know if you've had any luck finding a case that supports us continuing.  I'll do the same on my end through my searches.

[Rachael26]

@Mark384

This is a very interesting situation and surely will be of interest to other hosts - so would you please consider coming back to this forum and letting us know how you got on and any useful tips for others? It could be very helpful.

Best Wishes.

[David126]

I just read the clause you listed, says transient and I assume you want to do STR and mentioned the lot, not the whole lot.

[Jill172]

I am having this same issue. I list a room for rent and my HOA has indicated that no transient lodging providing services such as hotel/motel shall be less than 30 days

[Mark384]

then you may have to stop like I did.  I fought it and they didn['t fine me but I didn't want to  press the issue, I was pissing people off but my covenants had a loophole I used.

[Rachael26]

@Mark384

Thanks for the update, and it's a shame that you can't push forward with your Airbnb room. Times will change however, and quite soon I think. So keep the (gentle) pressure up, follow any updates in Myrtle Beach laws and watch how your HOA Board changes. It only takes one or two new people to join a Board to make things happen.

But ultimately, HOAs are a pain the butt! ;-(  

Best Wishes.

[Atsuko-Heidi0]

I have recently received the written notice from my HOA that my Airbnb leasing is prohibited under the CC&R.  My listing has been in Airbnb over a year, so I was very surprised to receive the notice from HOA. Prior to listing my condo on Airbnb, I read through CC&R to make sure that a short term renting is not prohibited by HOA.  Here is the HOA letter says: It has been brought to the Boards attention that you are leasing your unit through AirBnB. Per the rules of your community, this is prohibited: "No professional, commercial or industrial operations of any kind shall be conducted in or upon any Condominium unit, Common area or Association Property.....". My property had been a long-term rental for 8 years prior to converting it to Airbnb last year.  In addition, more than 50% of the condominium units in my community are rentals.  Any advice on how to respond to the HOA notice?

[Alison1]

Maybe look to the IRS tax code for definitions  of " professional, commercial, or industrial "  short term rentals. Is your condo insurance for "commercial" properties ?  What is their beef anyway ?  

[David126]

@Atsuko-Heidi0

My assummption is that they do not realise you can long term rent on ABB and think you are short term renting.