How to win against HOA who ban AirBnB without an explicitly restrict sentense

Jenny1434
Level 2
San Diego, CA

How to win against HOA who ban AirBnB without an explicitly restrict sentense

Hello, 

 

I am hosting two rooms in my house.  I got a penalty from HOA and preparing an appeal. 

In my interpretation of HOA CC&R,  the section is not related to my case but HOA neglect my appeal.  

Please read and share your idea hoe to win in this game. 

 

1) Status: A homeowner had rented 2 bedrooms for last 2 month.  HOA found the posting in AirBnB website and gave a penalty. 

2)  CC&R description:  Original document (1990) and no update at all. No explicit short term rental restrcition but some relavant information in subdivision section 

"11.13 Further Subdivision
No Owner shall further partition or subdivide his Lot, including without limitation any division of his Lot into time-share estates or time-share uses;
provided, however, that this provision shall not be construed to limit the right of an Owner (1) to rent or lease his entire Lot by means of a written lease or rental agreement subject to the restrictions of this Declaration,
so long as the Lot is not leased for transient or hotel purposes; (2) to sell his Lot; (3) to transfer or sell any Lot to more than one person to be held by them as . tenants-in-common, joint tenants, tenants by the entire or as community property; or (4) to subdivide multiple Lots into fewer Lot than existed immediately prior to such subdivision, if such resubdivision is previously approved by the Board and the DRE;  and provided further, however, that Browni may subdivide Lot 4 of said Map No. 14567 into not more than four, one-acre single family residential lots or parcels and may subdivide Lot 11 of said Map No. 41473 into not more than two, one-aera single family residential lots or parcels, in each case subject to applicable governmental regulations and approvals, The Owners of such subdivided Lots may enter into an agreement to allocate assessments among themselves; provided, however, that such agreement be approved in advance by the Board and that the terms of the agreement are reasonable. "

 

3) Conflict 

(1) Homeowner:  "partition or subdivide his Lot", Lot definition is not in CC&R and it must interpret as land.  County document  lot subdivision is land subdivision.  "Hotel purpose", AirBnB is not hotel.   Just like Hotel,  no breakfast, cleaning service, inspection by city. Just residential   

(2) HOA: Lot comprise building and land.  Renting some rooms means dividing house.  "Hotel purpose": AirBnB is hotel purpose.  

 

Support Lawsuit case (No.D075466) 

"However, for such a restriction to be effective, the language in the CC&Rs must explicitly restrict STRs as demonstrated by a recent unpublished California Court of Appeals decision from the Fourth District, Lastavich v. Nob Hill Homeowners Association et al.(Case No. D075466) (“Nob Hill”)"

The Importance of Well-Drafted Short-Term Rental Restrictions — HOA Lawyer Blog — March 24, 2021 

8 Replies 8
Terri129
Level 3
Plymouth, CA

Also, certain single family lots (California) can now be subdivided with two homes built on each parcel even in a homeowners' association. Check with your local planning department that is probably updating their code.

Terri129
Level 3
Plymouth, CA

Civil Code 4741 effective 1/1/2022. HOA cannot stop you from short term rentals if you live on site at the property. If you are renting two rooms and live on site, the renters are not considered renters. If the board did not follow procedure including noticing and dispute resolution opportunities, they could be liable.

Sarah977
Level 10
Sayulita, Mexico

@Jenny1434  The regulations you cited regarding subdividing property are not pertinent. There is probably a clause which prohibits commercial activity, subletting, or transient use. If so, this will not be something you will have success in fighting, as doing Airbnb is commercial activity and transient occupation.

Terri129
Level 3
Plymouth, CA

2021 California case law Brown v. Montage at Mission Hills. Short term rentals is not a commercial use, it's a residential use equivalent to long term rentals.

Brian2036
Level 10
Arkansas, United States

@Jenny1434 

 

The HOA clearly wants to ban STRs. They can and they will unless a majority of the owners are willing to remove the Board of Directors and elect people who want to allow STRs.

 

 I seriously doubt that most of your neighbors want to do that.

Lorna170
Level 10
Swannanoa, NC

@Jenny1434    An Airbnb rental is transient.   In many states, earnings from Airbnb/transient housing is considered “hotel” and is taxed as such.  If Airbnb is collecting taxes on your behalf, what are those taxes?  Not the amount, but the category.   

The way I read the posted guidelines, unless you rent your entire property with a long term lease, I believe your HOA will prevail.

Dave1110
Level 2
Warrenville, SC

@Jenny1434 

1. Those taxes being collected by Airbnb are crucial to reflecting the category of the rental, as determined by the muncipality collecting them. Therefore, if you are having local taxes taken out of your earnings, you must learn the category, as @Lorna170 Lorna advised above. Once you determine the category, it will be the HOA's obligation to rule on the side of the muncipality, whichever way the taxes are being accounted for. 

2. portion 1) 'so long as the Lot is not leased for transient or hotel purposes'...this single clause will probably defeat you. But perhaps you can find your muncipality official definition of 'transient or hotel' in their tax code or local legal codes, in which case you will then have the same definition that the HOA is using against you.

 

Best of luck, and I hope you win.

 

Mike-And-Jane0
Level 10
England, United Kingdom

@Jenny1434 you'll definitely need a lawyer for this one but I rate your chances of success as rather low I am afraid.

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