Post by High Priestess on Oct 4, 2015 18:43:16 GMT
Ed shared in July 2015
Notice of Determination and Request for Resolution
Hi - I received a $34,000 fine from HOA in violation of the CC&Rs short term rentals.
They wrote:"It was reported that you rented your unit for less than 30 days. A fine of $500 per rental has been applied to your account."
"Your prior email to the Association indicated that you obtained a permit from the San Francisco Planning Department for your short-term rental. Even if the City’s local ordinance permits short-term rentals of less than 30 days on Airbnb, the CC&Rs can impose more stringent requirements that apply to your Unit. As such, you CANNOT lease your Unit for less than 30 days even if you comply with the registration, insurance and tax requirements of San Francisco. The local ordinance allowing Airbnb listings applies to other condominiums that do not have CC&Rs prohibiting rentals of less than 30 days."
They also sent the letter to Airbnb’s counsel, Katie Biber. I received a response from Airbnb Help "We received the attached communication regarding your listing from Hanh Pham. Pursuant to our policy, we are passing it along to you.
Please remember that hosts must review their local laws before listing a space on Airbnb. By accepting our Terms of Service and activating a listing, you certify
that you will follow local laws and regulations. In addition, we require you to
comply with any other third-party rules that bind you, such as your lease, or
HOA/co-op rules.
If you need to make any adjustments after reviewing this letter, such as deleting your listing or canceling upcoming reservations, please let me know and I’d be
happy to help."
I feel that the $500 violation was not in the CC&Rs that I signed when I first purchased the condo. The $500 violation is a proposed amendment so therefore should not apply to the violation. Is there a way I can fight the fine? Can anyone recommend an attorney / law firm to review the letter and fight the fine?
Any advise would be helpful! Thank you!
Gina:
I would think if the fine is not written into the CC&R that you signed, you can just respond by noting it in a letter you send the condo management. Have you tried that first?
Ed:
I received the letter this morning. I don't want to respond until I get advice from the Group and an attorney. Thanks Gina
Keith:
clearly read your CC&R's.. if there isn't a fine, simply reply that there isn't such a fine in the CC&R's that are applicable to date.
Also, you may want to find a local HOA attorney who can help you. One of my brothers in Colorado is an HOA attorney so he may know of one out here.. if you need, email me and I'll ask him.
The short answer to "is there any way I can fight the fine" .. you always can fight anything, it's whether or not you'll win.. sometimes a lawsuit forces peoples hands and they'll agree to a lower fine or whatever.
your CC&R's should have a clause about binding arbitration or if there's an attorneys fees provision and whether or not that applies to prevailing parties, etc.
In any case, it's likely that you need to stop the activity if they're on to you and then can likely negotiate away the fine because their real goal is to have the activity stopped.
Ed:
Hi Keith - I'll stop renting but the fine is outrageous. They sent out an amendment to the Schedule of Fine that will not come in affect until July 20, 2015. This violation fine dates back to March 2013.
Keith:
I dont know of any legal way for them to impose a new fine retroactively. that'd be like California raising the minimum sentence for burglary and then rounding up everyone and sending them back to prison... makes no sense. I would simply send them a letter stating that you have discontinued hosting activities in advance of he newly to be imposed fines.. and that fines can only be imposed for activity that happened after the fine goes into affect. Thank you for your kind note, and please send me confirmation that this case has been closed.
Ed:
The letter states the following:
Violation of Airbnb Terms and Conditions
The terms and conditions for Airbnb.com (https://www.Airbnb.com/terms/) indicate that each host represents and warrants that an Accommodation “will not breach any agreements” that the host has entered into with any third parties” and will be in compliance with all applicable laws, tax requirements, zoning laws and laws governing rentals of residential and other properties and that “Airbnb reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that Airbnb, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or Airbnb’s then current Policies and Community Guidelines (at www.Airbnb.com/help/policies).
We are providing Airbnb with a copy of this notice of determination letter to let them know that you are breaching the CC&Rs, which you agreed to abide by when you bought your Unit. In addition, the Accommodation may be violating San Francisco laws by providing hotel accommodations without paying hotel taxes.
Request for Resolution
The Association is hereby serving you with a Request for Resolution pursuant to
California Civil Code (phone number hidden) (attached hereto) to resolve its dispute against you for your illegal short-term rental. If you agree to alternative dispute resolution (ADR), preferably by mediation, you and the Association will each pay for half the cost of mediation. If you do not agree to ADR within thirty (30) days of receipt of this request, the request will be deemed denied and the Association will be free to file a lawsuit for injunctive relief against you and to obtain a court judgment requiring that you to pay the Association’s legal fees for the injunction. You may avoid the need for ADR by renting the Unit for more than 30 days and providing a copy of the lease. Your blatant violation of the CC&Rs is disturbing their neighbors, who fear for their safety and security with transients coming and going from the building.
The Board hopes that you will decide to comply with the CC&Rs in order for all
concerned to avoid the expense, time commitment and ill will that can be caused by adversarial legal proceedings.
Keith:
well, airbnb is collecting and remitting hotel tax for you so that's a moot point. The airbnb terms and conditions state that they reserve the right to pull a listing but not that they will anytime someone requests that they do so. If they offer proof sufficient to airbnb they'll likely pull it (sometimes this comes in the form of a court order).
Meanwhile, every airbnb listing in SF was violating a local law until February and they didn't pull them
.. so there's some latitude here.
Ali:
Can you post a link to the CC&R's ?
Ed:
Not sure where I can upload it. Just found out that there was an Appendix which I never received. Appendix A – Schedule of Monetary Penalties This Schedule of Monetary Penalties is part of the Association Rules for the Villa Dei Fiori Owners’ Association, San Francisco, California. The Association Rules, including this Schedule of Monetary Penalties, were adopted at its regular meeting of January 13th, 2011, by the Board of Directors of the Association. The Schedule of Monetary Penalties meets the requirements set forth by §1363(g) of the Davis-Sterling Common Interest Development Act. 1. Prior to the levy of a fine or monetary penalty upon a member for the violation of the Governing Documents of the Association, which include violating a Rule contained in the Association Rules, or a provision contained in the Declaration of Restrictions (CC&R's), or a provision of the Association's Bylaws, legal process shall be observed to determine factually whether such violation occurred and whether the Owner (Association Member) named is responsible. 2. The maximum monetary penalty which the Board may levy for the first violation of an Association Rule is One Hundred Dollars ($100.00). If a monetary penalty is to be levied for the violation of an Association Rule, the minimum amount of such penalty is Twenty-five Dollars ($25.00). For a second violation of the same Rule, an Owner may be fined up to twice the amount of the penalty for the first violation; but if no monetary penalty was levied for the first violation the monetary penalty for the second violation may be between Fifty Dollars ($50.00) and Two Hundred Dollars ($200.00). 3. For violations of provisions of the CC&R's, Bylaws and third and subsequent violations of the same Association Rule, the Board may levy a penalty up to a maximum of Five Hundred Dollars ($500.00) in addition to other non-monetary sanctions. 4. In determining the amount of any monetary penalty to be levied on an Owner, the Board shall exercise its powers in the broadest sense and shall consider such factors as: Relative severity of the violation as to its effect on the association and other Owners in both a short and long term context; Extenuating circumstances surrounding the violation; Whether the Owner has a history of violations in the past supported by corroborated complaints; Whether the Owner has been fined in the past for a violation; Whether the Owner has previously violated the same provision of the governing documents; and Other legitimate factors pertinent to the case at hand. 5. Whether or not a monetary penalty is levied by the Board, the Owner responsible shall pay all costs involved in remedying or resolving the matter of violation. Such costs include, but are not limited to costs of: towing; debris removal; clean-up; repair; restoration; interest (if costs are to be paid over a period of time); legal, professional, technical and collection services; false alarm levies; and any other applicable legitimate cost which may be levied in the matter.
Keith:
well this is your first notification so that's clear that they can't simply wait 3 years the add up all the 'incidents' without notifying you. so you should only have to pay the first penalty maximum.
Ali:
Are you allowed to sublet ? Curious exactly what paart of the CC7R's you violated.
Ed:
The HOA attorney's letter indicate that I'm in violation of Section 4.6B (1) of the CC&Rs states; “Leasing of Units and Delegation of Use. (B) An Owner may rent his or her Unit subject to the provisions of this section.
(1) No Unit may be rented for transient or hotel purposes, which shall be defined as (i) a rental for any period less than thirty (30) days, or (ii) any rental if the occupants are provided customary hotel services such as room service for food and beverage, maid service, or laundry service. Any lease or rental agreement between an Owner and a tenant shall be in writing and shall provide that it is in all respects subject to the provisions of the Governing Documents, that any failure by the tenant to comply with such provisions shall be a default under the lease or rental agreement, and that all provisions of the Governing Documents shall be deemed incorporated by reference in such lease or rental agreement. However, the failure of any lease or rental agreement to so provide shall not excuse the tenant from complying with such provisions. Any lease or rental agreement shall also provide that the tenant may not sublease the Unit. In the event of such a default, the Owner shall take all action to cure the default including, if necessary, eviction of the tenant. Each Owner-lessor shall provide any tenant or lessee with a current copy of all Governing Documents. A renting Owner shall comply with any and all applicable state and local laws regarding the rental of residential property.I'm
Peter:
Ed, given the size of your fine and the circumstances you described, I do think you are wise to seek legal counsel. I'll send you my recommendation by private email.
Tom:
I think Peter’s comment is the most helpful and useful. I am sure neither side wants a costly legal battle.
Notice of Determination and Request for Resolution
Hi - I received a $34,000 fine from HOA in violation of the CC&Rs short term rentals.
They wrote:"It was reported that you rented your unit for less than 30 days. A fine of $500 per rental has been applied to your account."
"Your prior email to the Association indicated that you obtained a permit from the San Francisco Planning Department for your short-term rental. Even if the City’s local ordinance permits short-term rentals of less than 30 days on Airbnb, the CC&Rs can impose more stringent requirements that apply to your Unit. As such, you CANNOT lease your Unit for less than 30 days even if you comply with the registration, insurance and tax requirements of San Francisco. The local ordinance allowing Airbnb listings applies to other condominiums that do not have CC&Rs prohibiting rentals of less than 30 days."
They also sent the letter to Airbnb’s counsel, Katie Biber. I received a response from Airbnb Help "We received the attached communication regarding your listing from Hanh Pham. Pursuant to our policy, we are passing it along to you.
Please remember that hosts must review their local laws before listing a space on Airbnb. By accepting our Terms of Service and activating a listing, you certify
that you will follow local laws and regulations. In addition, we require you to
comply with any other third-party rules that bind you, such as your lease, or
HOA/co-op rules.
If you need to make any adjustments after reviewing this letter, such as deleting your listing or canceling upcoming reservations, please let me know and I’d be
happy to help."
I feel that the $500 violation was not in the CC&Rs that I signed when I first purchased the condo. The $500 violation is a proposed amendment so therefore should not apply to the violation. Is there a way I can fight the fine? Can anyone recommend an attorney / law firm to review the letter and fight the fine?
Any advise would be helpful! Thank you!
Gina:
I would think if the fine is not written into the CC&R that you signed, you can just respond by noting it in a letter you send the condo management. Have you tried that first?
Ed:
I received the letter this morning. I don't want to respond until I get advice from the Group and an attorney. Thanks Gina
Keith:
clearly read your CC&R's.. if there isn't a fine, simply reply that there isn't such a fine in the CC&R's that are applicable to date.
Also, you may want to find a local HOA attorney who can help you. One of my brothers in Colorado is an HOA attorney so he may know of one out here.. if you need, email me and I'll ask him.
The short answer to "is there any way I can fight the fine" .. you always can fight anything, it's whether or not you'll win.. sometimes a lawsuit forces peoples hands and they'll agree to a lower fine or whatever.
your CC&R's should have a clause about binding arbitration or if there's an attorneys fees provision and whether or not that applies to prevailing parties, etc.
In any case, it's likely that you need to stop the activity if they're on to you and then can likely negotiate away the fine because their real goal is to have the activity stopped.
Ed:
Hi Keith - I'll stop renting but the fine is outrageous. They sent out an amendment to the Schedule of Fine that will not come in affect until July 20, 2015. This violation fine dates back to March 2013.
Keith:
I dont know of any legal way for them to impose a new fine retroactively. that'd be like California raising the minimum sentence for burglary and then rounding up everyone and sending them back to prison... makes no sense. I would simply send them a letter stating that you have discontinued hosting activities in advance of he newly to be imposed fines.. and that fines can only be imposed for activity that happened after the fine goes into affect. Thank you for your kind note, and please send me confirmation that this case has been closed.
Ed:
The letter states the following:
Violation of Airbnb Terms and Conditions
The terms and conditions for Airbnb.com (https://www.Airbnb.com/terms/) indicate that each host represents and warrants that an Accommodation “will not breach any agreements” that the host has entered into with any third parties” and will be in compliance with all applicable laws, tax requirements, zoning laws and laws governing rentals of residential and other properties and that “Airbnb reserves the right, at any time and without prior notice, to remove or disable access to any Listing for any reason, including Listings that Airbnb, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms or Airbnb’s then current Policies and Community Guidelines (at www.Airbnb.com/help/policies).
We are providing Airbnb with a copy of this notice of determination letter to let them know that you are breaching the CC&Rs, which you agreed to abide by when you bought your Unit. In addition, the Accommodation may be violating San Francisco laws by providing hotel accommodations without paying hotel taxes.
Request for Resolution
The Association is hereby serving you with a Request for Resolution pursuant to
California Civil Code (phone number hidden) (attached hereto) to resolve its dispute against you for your illegal short-term rental. If you agree to alternative dispute resolution (ADR), preferably by mediation, you and the Association will each pay for half the cost of mediation. If you do not agree to ADR within thirty (30) days of receipt of this request, the request will be deemed denied and the Association will be free to file a lawsuit for injunctive relief against you and to obtain a court judgment requiring that you to pay the Association’s legal fees for the injunction. You may avoid the need for ADR by renting the Unit for more than 30 days and providing a copy of the lease. Your blatant violation of the CC&Rs is disturbing their neighbors, who fear for their safety and security with transients coming and going from the building.
The Board hopes that you will decide to comply with the CC&Rs in order for all
concerned to avoid the expense, time commitment and ill will that can be caused by adversarial legal proceedings.
Keith:
well, airbnb is collecting and remitting hotel tax for you so that's a moot point. The airbnb terms and conditions state that they reserve the right to pull a listing but not that they will anytime someone requests that they do so. If they offer proof sufficient to airbnb they'll likely pull it (sometimes this comes in the form of a court order).
Meanwhile, every airbnb listing in SF was violating a local law until February and they didn't pull them
.. so there's some latitude here.Ali:
Can you post a link to the CC&R's ?
Ed:
Not sure where I can upload it. Just found out that there was an Appendix which I never received. Appendix A – Schedule of Monetary Penalties This Schedule of Monetary Penalties is part of the Association Rules for the Villa Dei Fiori Owners’ Association, San Francisco, California. The Association Rules, including this Schedule of Monetary Penalties, were adopted at its regular meeting of January 13th, 2011, by the Board of Directors of the Association. The Schedule of Monetary Penalties meets the requirements set forth by §1363(g) of the Davis-Sterling Common Interest Development Act. 1. Prior to the levy of a fine or monetary penalty upon a member for the violation of the Governing Documents of the Association, which include violating a Rule contained in the Association Rules, or a provision contained in the Declaration of Restrictions (CC&R's), or a provision of the Association's Bylaws, legal process shall be observed to determine factually whether such violation occurred and whether the Owner (Association Member) named is responsible. 2. The maximum monetary penalty which the Board may levy for the first violation of an Association Rule is One Hundred Dollars ($100.00). If a monetary penalty is to be levied for the violation of an Association Rule, the minimum amount of such penalty is Twenty-five Dollars ($25.00). For a second violation of the same Rule, an Owner may be fined up to twice the amount of the penalty for the first violation; but if no monetary penalty was levied for the first violation the monetary penalty for the second violation may be between Fifty Dollars ($50.00) and Two Hundred Dollars ($200.00). 3. For violations of provisions of the CC&R's, Bylaws and third and subsequent violations of the same Association Rule, the Board may levy a penalty up to a maximum of Five Hundred Dollars ($500.00) in addition to other non-monetary sanctions. 4. In determining the amount of any monetary penalty to be levied on an Owner, the Board shall exercise its powers in the broadest sense and shall consider such factors as: Relative severity of the violation as to its effect on the association and other Owners in both a short and long term context; Extenuating circumstances surrounding the violation; Whether the Owner has a history of violations in the past supported by corroborated complaints; Whether the Owner has been fined in the past for a violation; Whether the Owner has previously violated the same provision of the governing documents; and Other legitimate factors pertinent to the case at hand. 5. Whether or not a monetary penalty is levied by the Board, the Owner responsible shall pay all costs involved in remedying or resolving the matter of violation. Such costs include, but are not limited to costs of: towing; debris removal; clean-up; repair; restoration; interest (if costs are to be paid over a period of time); legal, professional, technical and collection services; false alarm levies; and any other applicable legitimate cost which may be levied in the matter.
Keith:
well this is your first notification so that's clear that they can't simply wait 3 years the add up all the 'incidents' without notifying you. so you should only have to pay the first penalty maximum.
Ali:
Are you allowed to sublet ? Curious exactly what paart of the CC7R's you violated.
Ed:
The HOA attorney's letter indicate that I'm in violation of Section 4.6B (1) of the CC&Rs states; “Leasing of Units and Delegation of Use. (B) An Owner may rent his or her Unit subject to the provisions of this section.
(1) No Unit may be rented for transient or hotel purposes, which shall be defined as (i) a rental for any period less than thirty (30) days, or (ii) any rental if the occupants are provided customary hotel services such as room service for food and beverage, maid service, or laundry service. Any lease or rental agreement between an Owner and a tenant shall be in writing and shall provide that it is in all respects subject to the provisions of the Governing Documents, that any failure by the tenant to comply with such provisions shall be a default under the lease or rental agreement, and that all provisions of the Governing Documents shall be deemed incorporated by reference in such lease or rental agreement. However, the failure of any lease or rental agreement to so provide shall not excuse the tenant from complying with such provisions. Any lease or rental agreement shall also provide that the tenant may not sublease the Unit. In the event of such a default, the Owner shall take all action to cure the default including, if necessary, eviction of the tenant. Each Owner-lessor shall provide any tenant or lessee with a current copy of all Governing Documents. A renting Owner shall comply with any and all applicable state and local laws regarding the rental of residential property.I'm
Peter:
Ed, given the size of your fine and the circumstances you described, I do think you are wise to seek legal counsel. I'll send you my recommendation by private email.
Tom:
I think Peter’s comment is the most helpful and useful. I am sure neither side wants a costly legal battle.