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.

[Atsuko-Heidi0]

My HOA is not making an issue over `long-term`  vs `short-term` rentals.  They are saying that Commercial activities are not allowed. 

[David126]

I doubt if there are many HOA's that allow Commercial activities.

[Tim258]

My wife and I will like to start an Airbnb with our home for 'Transient or hotel purposes' which will be less then 30 days.  We wanted to check with our HOA before stepping into anything later.  I've read all the concerns about the HOA rules and this one is really loose.  We aren't technically leasing to anyone.   And we are still living in the same house.  We are waiting for a reponse from our HOA.  Do you see any holes in this clause we can use if they say we wouldn't be compliant if we were to host an Airbnb with our house?

 1.) TENANTS: LEASING A LIVING UNIT AND LOT: Any Owner of a Lot with a home may lease the home and Lot to any person without approval by the Association. However, the Association does have the following minimum requirements concerning tenants which must be followed. These requirements are set forth to assist tenants and to involve them in the life of the community and not to adversely affect an Owner’s right to lease property. (a.) Any owner leasing their home must furnish the name and address of the tenant to the Association. The Owner must also furnish their new address for the Association records. (b.) The term of the lease shall not be less than thirty (30) days. (c.) The lease form shall have a clause which states that the tenant shall abide by the Rules and Regulations, and the Architecture and Landscape Guidelines of the Association. The tenant also assumes responsibility for guests using the Association property. (d.) The Owner shall assume all responsibility for actions of tenants and guests. Therefore, a copy of the Rules and Regulations, and the Architecture and Landscape Guidelines shall be furnished by the Owner to the tenant with the lease.

Hopefully we will know as early as later this morning what they say.

[Tim258]

Hello,

I recently received a reply from my HOA.  Eventhough their rules are very vague the HOA still didn't accept our request to host an Airbnb with our home.  If anyone has some ideas to get around the interpretation of their rules please let me know.  Thanks.

[David126]

@Tim258

The rules you quoted seem fairly clear, you csn rent for longer than 30 days.

[Arturo52]

This may be interesting to you.

http://law.justia.com/cases/texas/third-court-of-appeals/2015/03-14-00660-cv.html

[Tami6]

whether short-term vacation rentals violate restrictive covenants requiring property to be used only for residential purposes and prohibiting its use for business purposes—appears to be a matter of first impression in Florida.  See generally William P. Sklar & Jerry C. Edwards, Florida Community Associations Versus Airbnb and VRBO in Florida , Fla. Bar. J., Feb. 2017, at 16. However, courts in a number of other states have considered the issue and those courts have almost uniformly held that short-term vacation rentals do not violate restrictive covenants nearly identical to those at issue in this case. See Gadd v. Hensley , –––S.W.3d ––––, 2017 WL 1102982 (Ky. Ct. App. Mar. 24, 2017) (unpublished opinion); Houston v. Wilson Mesa Ranch Homeowners Ass'n , 360 P.3d 255 (Col. App. 2015) ; Wilkinson v. Chiwawa Communities Ass'n , 180 Wash.2d 241, 327 P.3d 614 (2014) (en banc); Estates at Desert Ridge Trails Homeowners' Ass'n v. Vazquez , 300 P.3d 736 (N.M. Ct. App. 2013) ; Russell v. Donaldson , 222 N.C.App. 702, 731 S.E.2d 535 (2012) ; Slaby v. Mountain River Estates Residential Ass'n , 100 So.3d 569(Ala. Civ. App. 2012) ; Applegate v. Colucci , 908 N.E.2d 1214 (Ind. Ct. App. 2009) ; Mason Family Trust v. DeVaney , 146 N.M. 199, 207 P.3d 1176 (N.M. Ct. App. 2009) ; Ross v. Bennett , 148 Wash.App. 40, 203 P.3d 383 (2008) ; Scott v. Walker , 274 Va. 209, 645 S.E.2d 278 (2007) ; Lowden v. Bosley , 395 Md. 58, 909 A.2d 261 (2006) ; Mullin v. Silvercreek Condo. Owner's Ass'n , 195 S.W.3d 484 (Mo. Ct. App. 2006) ; Pinehaven Planning Bd. v. Brooks , 138 Idaho 826, 70 P.3d 664 (2003) ; Yogman v. Parrott , 325 Or. 358, 937 P.2d 1019 (1997) (en banc); Catawba Orchard Beach Ass'n v. Basinger , 115 Ohio App.3d 402, 685 N.E.2d 584 (1996) ; but see Shields Mountain Property Owners Ass'n v. Teffeteller , 2006 WL 408050 (Tenn. Ct. App. Feb. 22, 2006) (unpublished opinion); Benard v. Humble , 990 S.W.2d 929 (Tex. App.– Beaumont 1999).

These decisions explain that in determining whether short-term vacation rentals are residential uses of the property, the critical issue is whether the renters are using the property for ordinary living purposes such as sleeping and eating, not the duration of the rental. See, e.g. , Wilkinson , 327 P.3d at 620 ("If a vacation renter uses a home ‘for the purposes of eating, sleeping, and other residential purposes,’ this use is residential, not commercial, no matter how short the rental duration." (quoting Ross , 203 P.3d at 388 )

[Barbara226]

You will need to respond with advice from a lawyer, but I would point said lawyer in the direction of the Chiwawa case mentioned earlier in this thread, and these points:

1. There appear to be no existing prohibitions on renting/leasing in your covenants.
2. Renting/leasing is consistent with residential use, not commercial/business use.
3. If they try to insist it’s business use, ask them if the management company down the road is conducting business IN the units they manage for rent. Of course not. They are conducting business in their offices downtown.

[Barbara226]

Seek the advice of an attorney, but at least in Maine, renting in the manner you are is considered a residential use of the property, not a commercial use.

[David8]

"hotel or transient purposes"

My HOA has this language too.  I would argue short term rentals like Airbnb do not fall into this antiquated phrase, and most Airbnb activity are not covered by bylaws/rules governing leases, since we license our space out.

Clearly most conventional Airbnbs are not hotels.  Those spaces aren't zoned for hotel use, nor has any hotel license been granted to these operations.

"Transient" is a very perjorative term when it was used back in the 1950s when most of this bylaw language was invented.  Transient people were on the same social standing as the homeless.  It has racist connotations, as the poor were disproportionately minorities.  Keeping people out of the buildings that were here for "hotel and transient purposes" was to basically discriminate against the poor or those with bad credit.  To the extent "transient" means what it meant when this language was invented, it should be voided as a matter of public policy.  Even if we give people the benefit of the doubt, what does "transient" mean in terms of days?  It is too vague.

If a HOA wants to restrict vacation rentals or Airbnb, use modern language like "Airbnb" or other marketing platforms, "short-term rentals", or "home sharing".   Spell it out and remove this ambiguity.  But at least get into this new age.

[David126]

tran·sient

ˈtranSHənt,ˈtranzēənt/

adjective

1. 1.

   lasting only for a short time; impermanent.

   "a transient cold spell"

   synonyms:

   transitory, temporary, short-lived, short-term, ephemeral, impermanent, brief, short, momentary, fleeting, passing, here today and gone tomorrow; More

   There are so many different styles of listings on AirBnB that it is impossible to use AirBnb as an all encompassing term.

   My guests are certainly transcient, I do not do long term bookings. 

[Mark26]

I have a license to operate "Transient Apartments" from the State of Florida, Department of Hotels and Restaurants.  All of my guests are Transients!

[Mark26]

A very famous weasel once faced a grand jury and said: "It depends upon what the meaning of the word 'is' is." 

Argue all you want.  Call a word Antiquated if you wish.  It doesn't change anything. The meaning is the same. You know it and I know it.  Stop pretending that you don't understand the spirit and intention of your neighbors when they wrote the Home Owners Association rules.  If your name was Richard, I'd call you a short for Richard.  But it's not. So I can't.

[Matt3382]

This is the same wording my HOA is using against me, and I agree, transient is NOT what Airbnb is to me. The length of stays vary, the people are vetted, and they are part of a permanent, registers system.

So what does a person do? Do we have to hire a lawyer, or can we just try and walk this through small claims court ourselves?

[Yolanda--and-Alejandro0]

We have been hosts for almost 2 years now and just today we received a letter from our HOA stating that we should " refrain from using your home as an Air BNB".  I have to say we live in a community of 141 detached homes, registered the business and obtained a license with the City of Carlsbad, pay the TOT taxes to the city every month and file our taxes including what we make with Airbnb per year.  We have never experienced any issues created by our guests in our neighborhood.  Our house is located in a cul-de-sac.  We have never had any of our neighbors of 17 years approach us regarding this issue.  The HOA letter had attached a page of the rules and regulations, with a highlighted sentence that only reads: " No unit shall be used except for single family or residential purposes".  The same page, in the previous sentence, not highlighted, reads: " All tenants must comply with the Rules and Regulations, Bylaws, Architectural Guidelines and the CC&Rs. Owners are held responsible for their tenants and guests." Based on this, my Airbnb guests would fall into this category.  We understand that as hosts, we are resposible to be in compliance with our HOA's rules and regulations. However, it is not a secret that in our neighborhood, there are some homeowners that have their office at home, have long term tenants, others that do AribnB, or even have a day care.  Your input will be highly appreciated!