HOA rule changes, prohibiting short-term rentals

[D41]

Hello Air BnB community,

I have a potential issue that I could use some guidance with.  I currently have a house that I am renting out as a short-term rental.  At present, the HOA has nothing in place that prohibits this type of renting.  However, the HOA has it on their next agenda to vote on prohibiting short term rentals.  It’s a forgone conclusion that the HOA will have a majority vote to prohibit short term renting in our community.

Has anyone ran in to this with any of your properties, or have you heard of anyone else running in to this?  If so, do you have any advice on what I can do to ensure that I maintain my right to rent my house on a short-term basis, from a legal perspective, such as grandfathering my property in to the rules stated in the current by-laws, which do not address short-term rentals? 

I appreciate any feedback or insight from personal experience you may have in this area!

Doug

[David126]

Usually the clause that bans it relates to running a business from the property.

[Kelly149]

when you are subject to an HOA then you are subject to an HOA. You can make them verify and prove that all changes are above board, but if so then you are stuck with the rules.

Personal property rights are severly hampered by being subject to the group.

You can sue, but then you pay your attorney and the association attorney too (along with all of your neighbors)

[Terri129]

Doug, would like to know what happened. Depends what state you are in. Should not be Retroactive. California has new very liberal housing laws that even preempt local planning laws. Our hoa proposing same thing. Could be breach of contract if your use of property complied with ccrs you first agreed to. Terri

[Mark1547]

Terri ,  

Our California SFR  HOA (SFR, no common areas, 5 acre minimum) is also proposing to change the CCRs via vote to ban legally permitted STRs.  

 I've been operating a legally permitted STR 5 acre vinyard estate with no complaints for 5 yrs.    I have  invested significant $ in upgrading the property which I would lose if I were forced to sell or stop renting out as an STR.  

Everything I've searched on Google looks like they could do this, and there would be no grandfathering of existing permitted STRs. Have you heard anything different?

[Terri129]

No they can't do this. Civil Code 4740. protects owners prior to ban. And 4741. does not apply to owners before Jan 1, 2021. If you live in one of the units on your property you can short term rent the remaining units.

[Terri129]

Read new law effective 1/1/2021 no HOA can restrict a rental if CCRs were changed after you buy the property. Can't stop a STR if owner lives in either main house, 2nd Unit or junior unit even if buying after the rule is made. AB 3182

[Tom3042]

Hi Terri129 I've been researching this a lot and you may be right.  The way it's written now in 4741(e) definitively says owner-occupied rentals are lo longer considered rented. It means at minimum, the rental cap is not applicable. But it may be argued that the 30-day minimum is still required as the intent of the law was to address the housing crisis and open up inventory for residents, not vacationers. For now I think we're in a grey zone and none of this has been tested yet in the courts so, should be fun! 

[Terri129]

Not a gray zone. A new CC&R ban would not affect owners holding title prior to the amendment being recorded, or for new owners if they live in one of the units on the property. Per Civ Code 4740. and 4741. 4741 does not apply to anyone holding title prior to Jan 1, 2021.

[Christy262]

hi, Terry129 I am in the same boat as my HOA specifically says timeshare is Airbnb considered a timeshare and if not how can I go about this, my str is in o Fallon Missouri what steps to take to research more?

[Terri129]

Study Declaration, local laws, state laws. A stretch to call STR a timeshare. They can't fine you for something not specifically prohibited in the Declaration. A California case with some interesting argument. If timeshare not defined in Declaration, check the state definition.

[Terri129]

Case - https://findhoalaw.com/laguna-royale-owners-association-v-darger/