Post by High Priestess on Dec 17, 2016 16:38:20 GMT
See the article here:
www.fernaldlawgroup.com/regulating-short-term-rentals-in-homeowners-associations/
www.cai-glac.org/eMagFocus/efocus-2015-julaug/index.html#14
Excerpt:
HOAs have traditionally dealt with property usage issues in the Declaration or CC&Rs. Thus, many CC&Rs contain language limiting the use of property to a “single-family residence” and mandating residential or noncommercial use. Courts have generally upheld such restrictions as long as they are rationally related to the protection, preservation or proper operation of the development, and are enforced in a fair and nondiscriminatory manner. The broadly-worded restrictions found in many CC&Rs, however, are generally insufficient to preclude short-term vacation rentals.
As an example, in a case before the Washington State Supreme Court, the court rejected an HOA’s argument that short-term vacation rentals violated language in the HOA’s CC&Rs limiting lot use to “single-family residential use consisting of single residential dwelling” and precluding “industrial or commercial use.”
According to the court, “f 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.” While use of residences a s renta l property has always been an issue facing common interest developments, the advent of online vacation rental services such as Airbnb (www.airbnb.com) and VRBO (www.vrbo.com) have brought the issue to the forefront for homeowners associations and local municipalities alike. Short-term vacation rentals can have a significant impact on local communities in terms of traffic, noise and increased use of typical HOA services. The popularity of short-term vacation rentals is particularly noticeable in Southern California with its ready access to beaches, amusement parks and other entertainment.
Regulate Short-Term Rentals with a Well-Reasoned Amendment or Rule the CC&Rs for an affordable housing project. Thus to the extent that an HOA’s CC&Rsalreadycontain a rental duration restriction, and some do, such can be utilized by the HOA to immediately limit short-term vacation rentals. This leaves the many HOAs that have only the general single-family dwelling use restriction and nothing restricting rentals. One would imagine, especially in light of the unpopularity of short-term vacation rentals in many communities, that it would be a matter of simply amending the CC&Rs to restrict short-duration rentals. Setting aside the fact that such requires approval of at least a majority or, depending upon the CC&Rs, up to 75% of the members, via secret ballot, such an amendment would only apply to futurebuyers in the community. Section 4740 of the Davis-Stirling Act specifically exempts homeowners from rental restrictions adopted after January 1, 2012, unless they expressly agree to be bound by the restriction or the restriction that was in effect prior to the date the owner bought his or her property. In other words, an HOA can vote to restrict futureowners from engaging in short-term rentals, but not current owners.
A better approachmay be to regulate short-term rentals via rules, fees and fines, which avoids the need for a member election. Rules may be adopted by the HOA’s Board so long as they are reasonable and do not conflict with the HOA’s governing documents (e.g., CC&Rs and Bylaws). HOAs are also permitted to impose fees, so long ■ ■ ■
By Brandon C. Fernald, Esq. Wilkinson v. Chiwawa Communities Ass’n, 180 Wn.2d 241 (2013). While this case does not apply to California communities, it does show that courts are still struggling with how to handle these new t
www.fernaldlawgroup.com/regulating-short-term-rentals-in-homeowners-associations/
www.cai-glac.org/eMagFocus/efocus-2015-julaug/index.html#14
Excerpt:
HOAs have traditionally dealt with property usage issues in the Declaration or CC&Rs. Thus, many CC&Rs contain language limiting the use of property to a “single-family residence” and mandating residential or noncommercial use. Courts have generally upheld such restrictions as long as they are rationally related to the protection, preservation or proper operation of the development, and are enforced in a fair and nondiscriminatory manner. The broadly-worded restrictions found in many CC&Rs, however, are generally insufficient to preclude short-term vacation rentals.
As an example, in a case before the Washington State Supreme Court, the court rejected an HOA’s argument that short-term vacation rentals violated language in the HOA’s CC&Rs limiting lot use to “single-family residential use consisting of single residential dwelling” and precluding “industrial or commercial use.”
According to the court, “f 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.” While use of residences a s renta l property has always been an issue facing common interest developments, the advent of online vacation rental services such as Airbnb (www.airbnb.com) and VRBO (www.vrbo.com) have brought the issue to the forefront for homeowners associations and local municipalities alike. Short-term vacation rentals can have a significant impact on local communities in terms of traffic, noise and increased use of typical HOA services. The popularity of short-term vacation rentals is particularly noticeable in Southern California with its ready access to beaches, amusement parks and other entertainment.
Regulate Short-Term Rentals with a Well-Reasoned Amendment or Rule the CC&Rs for an affordable housing project. Thus to the extent that an HOA’s CC&Rsalreadycontain a rental duration restriction, and some do, such can be utilized by the HOA to immediately limit short-term vacation rentals. This leaves the many HOAs that have only the general single-family dwelling use restriction and nothing restricting rentals. One would imagine, especially in light of the unpopularity of short-term vacation rentals in many communities, that it would be a matter of simply amending the CC&Rs to restrict short-duration rentals. Setting aside the fact that such requires approval of at least a majority or, depending upon the CC&Rs, up to 75% of the members, via secret ballot, such an amendment would only apply to futurebuyers in the community. Section 4740 of the Davis-Stirling Act specifically exempts homeowners from rental restrictions adopted after January 1, 2012, unless they expressly agree to be bound by the restriction or the restriction that was in effect prior to the date the owner bought his or her property. In other words, an HOA can vote to restrict futureowners from engaging in short-term rentals, but not current owners.
A better approachmay be to regulate short-term rentals via rules, fees and fines, which avoids the need for a member election. Rules may be adopted by the HOA’s Board so long as they are reasonable and do not conflict with the HOA’s governing documents (e.g., CC&Rs and Bylaws). HOAs are also permitted to impose fees, so long ■ ■ ■
By Brandon C. Fernald, Esq. Wilkinson v. Chiwawa Communities Ass’n, 180 Wn.2d 241 (2013). While this case does not apply to California communities, it does show that courts are still struggling with how to handle these new t