Dealing with HOA rules - 2018

[Meaghan20]

Hi All, 

I have been hosting with Airbnb Well over 2 years now. All of a sudden I got a letter from from our HOA stating that we are in violation. I live in a small community in the suburbs of Houston, TX. The property has two houses on it, The main house which i live in and a guest house which is not even connected to the main house, has it's own entrance and driveway. The letter states we are in violation of the HOA restrictions:

"All lots in the subdivision shall be used only for single-family residential purpoes. No noxious or offensive activity of any sort shall be permitted nor shall anything be done on any lot which may be or become any annoyance or nuisance to the neighborhood. Nolot in the subdivision shall be used for any commerical business or professional purposes nor for church purposes."

Is airbnb actually a violation of this bylaw in the HOA? What is my best plan of action from this point? I am also in the process of finding a good real estate lawyer who is familar with HOAs. 

Does anyone have any expierence with dealing with the HOA in this matter? Has anyone had a similar issue but was able to fight it and continue hosting? If I cannot fight it do I have to cancel the up-comming reservations? Any advise or past experiece would be of great assistance. 

Kind Regards, 

Meaghan

[Alice-and-Jeff0]

@Meaghan20 - Airbnbing at your property is a business.  Seems to me, if any homeowner becomes a Pampered Chef, Avon Lady, or teaches piano in their home, they would be in violation.  Best to take it up with the HOA board and find out what the issue is and address it directly.  Right now, based on this blurb, you are in violation of your HOA rules. 

Wonder how they'd feel or behave about a home being rented completely.  

[Patrick-And-Katja0]

Not necessarily, the HOA rules need to be carefully looked at. I am currently in the same situation and have contained a specialized attorney to fight the HOA. According to case law letting a person use a room in your home does neither make it a business, nor does it create a lease. It's merely a license. In a lease you are giving the tenant an "interest in real estate"  and the "exclusive right to possession" which as a live in host or even non residential you do not. 

https://wscai.org/getting-away-in-an-hoa-what-can-associations-do-about-vacation-rentals/

[Kelly149]

HOAs are almost universally opposed to STR. And once they start fining you then you’re paying for your lawyer and theirs. Many people don’t realize that HOAs have the right to place a lein against your property. This will be an uphill battle for you. 

Yes, consult a lawyer. But yes, prepare yourself for cancelling all your reservations. 

Good luck

[Coral0]

Hello Community,  I have been hosting for over 4 years. I am in compliance with my local and state and transient taxes. The county has designated our area on Kauai as a vacation rental permitted area.  There are presently over 80 home vacation units here in Princeville, Kauai. Our HOA is now implimenting stricter rules to charge anyone $150/day if we rent a room in our homes. That includes, by the way, renting to a family member. Partialy renting many peoples homes has kept them from losing it. The HOA allows renting an entire house. That generally means the house is rented through an agency with no peramiters. Any resident here can tell you that if such a house is near them the noise is a considerable problem (try football team with drinking party!) Live-in hosts do not have that problem and we have never had a single complaint. We estimate business' will loose 30-40% and the county and state will loose approx. 2 million in taxes.  Airbnb states they are anxious to help hosts with their community.  We will be doing all we can to change this but we need help. 

[Julie1265]

I have the same problem with HOA.  Any luck with your case?  Thanks!

[Patrick-And-Katja0]

see my response below

[Merris1]

Hi There!

I too have an Airbnb that’s part of an HOA in Kauai.  Mine is  it is located in Poipu.  I too worry about changing rules.  So far, so good (knock on wood) but you never know.  What about joining the board?  

[Patrick-And-Katja0]

Hello All, 

we are currently fighting our HOA on this. We do have a blurb in our CC&Rs that say that :

A)"No Dwelling Unit may be leased for Hotel or Transient Purposes " (less than 30 days)

B)"No Owner may lease less then the entire Dwelling Unit"

Looking at the CC&Rs carefully the word "lease" is not defined, therefore the the commonly accepted is applied, which means "exclusive right to possession" and "givng the rights as a tenant creating an interest in real estate". These are guests, not tenants, they don't sign anything and there is no landlord/tenant relationship. No lease, no violation.

In addition to that courts have found that  allowing someone to stay in your home, does not make it commercial or hotel purpose. 

In our case, the HOA is also not in a position to find us in violation, because they would have to remove every 'roommate' as that is a rental agreement of "Less than the entire unit", and HOA's cannot pick and choose which rules they enforce and which not. 

We Also have a provision that says "The leasing of a lot or any part thereof shall not be considered a  trade or business within the meaning of this section", so the two rules conflict with each other. 

Our Board has other issues, i.e. check if they are in compliance with State Law, Do they have adopted Election Rules as required, are they properly elected, do they have terms on how long they can sit on the Board. If you can find them in violation of any of these. They cannot make any decisions. 

In our case if they do not back off, I will take them to court and other owners will join me. 

Here is a helpful article 

https://wscai.org/getting-away-in-an-hoa-what-can-associations-do-about-vacation-rentals/

All the Best

Katja