Get 2 months of free community web site hosting from Community123.com!
Tuesday, October 22, 2019
Get 2 months of free community web site hosting from Community123.com!
Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.
Subject: Enforcing Housing Rules
Prev Next
Please login to post a reply (click Member Login on the menu).
Author Messages
JasonL3
(California)

Posts:5


08/14/2019 8:04 PM  
Hi,

This question is for HOA's in California. Is there any way to enforce boarding rules for individual condo units which are being rented out by the owner?

We currently have a condo unit which is being leased by the owner, however the tenants then sub-leases the rooms on a short term basis. Creating an issue where there's short term rentals to different individuals. This creates a safety issue for everyone living here and we would like to put a stop to this. However the owner is not taking any actions and our city doesn't have any laws pertaining to such boarding accomodations.

Any suggestions or help would be appreciated.

Thank you

Jason.
MelissaP1
(Alabama)

Posts:8622


08/14/2019 8:10 PM  
The owner is the member of the HOA. So you have to hold the owner/member's feet to the ground to the rules. Do you have existing rules in place preventing this and a punishment for doing so? If not, then not much you can do since there's no rules or punishment against it.

Former HOA President
JasonL3
(California)

Posts:5


08/14/2019 8:24 PM  
Hi Melissa

Thanks for your reply. Our CC&R's are a bit oudated without accounting for such incidences. Of course we can amend these rules to reflect the situation.

What are the possible punishments for such actions? I understand there's restrictions on what the HOA can enforce or do.

Best

Jason

MelissaP1
(Alabama)

Posts:8622


08/14/2019 8:33 PM  
You have to consider "Tenant's rights". Which holds the owner's feet to the ground as well for eviction. Most landlords don't put a caveat in their lease agreements that their tenants must follow the HOA's rules or be subject to lease violation/eviction. So the HOA may lay some pressure on the owner to kick out their tenant, but the landlord can't because there is no terms defining HOA's violations are grounds for eviction.

Each HOA is different. So it's hard to tell what your HOA can or can do. Some HOA's can fine and others can't. If you can fine, it has to be defined in a fining schedule. Which that has to be distributed and understood by members. Meaning "Trash can left out on Friday is a $25 dollar a day fine till max fine of $500". It is defined and has a scheduled punishment. Each state varies so you can't go too crazy with fines.

Fines most likely can not be the basis of liens or foreclosures. So your HOA can't just randomly lien or foreclose for fines/violations. Typically liens/foreclosure for unpaid dues not fines. Although some "creative" accounting can be applied though I think it's wrong.

Former HOA President
KerryL1
(California)

Posts:6647


08/14/2019 9:42 PM  
So...your HOA actually has no rules against reacting out rooms, Jason? And there's nothing in the CC&Rs about this?
JasonL3
(California)

Posts:5


08/14/2019 10:09 PM  
Hi Kerry,

That's correct at this point as we haven't ran into this situatin until now. Most of the owners are in agreement, just unsure how to proceed within our limits.

Thanks

Jason
JasonL3
(California)

Posts:5


08/14/2019 10:11 PM  
Melissa,

Thanks for the feedback. I see where you're coming from with this and just unsure how to proceed. In terms of what HOA can and can not do, even if we were to change and amend the CC&R's to include the said restrictions.

We've been okay with the way things are and haven't ran into such situations previously.

Jason
PestY


Posts:0


08/15/2019 4:53 AM  
..... Our CC&R's are a bit oudated without accounting for such incidences. .....



There are NO 'incidences'.


The court system has held that anything NOT specifically and clearly restricted by the Covenant is ... wait for it ... NOT RESTRICTED.


The court system has also held that, as a contractual matter, any 'major' restrictions may NOT be added w/o 100% agreement.


This is to PREVENT tyrannical rule of the majority.


Of course, short/day rental may not be legal in your jurisdiction for ANYONE except a licensed hotel.
MelissaP1
(Alabama)

Posts:8622


08/15/2019 4:58 AM  
This is similar to a "Frat house" operation maybe. Which may be illegal in your county/city. Our HOA does have a restriction in it's CC&R's referencing can't rent rooms out. Which not every HOA may have. However, there isn't a "punishment" for violating this rule. We never established a fining schedule.

You could talk to the code department of your city to see if this is against the law. It may be something outside of the HOA's control. Doesn't mean you all can't get together to change your rules. Just follow the procedure on how to do it. Understand it can't be against the law local, county, state, or federal.

Former HOA President
CathyA3
(Ohio)

Posts:470


08/15/2019 5:05 AM  
If I were on the board in the OP's place, I'd do the following:

* Find out what local laws say about short term rentals. Some municipalities are starting to prohibit Airbnb-style "rentals". Let local authorities do the heavy lifting if possible.

* Enforce the existing restrictions diligently and consistently. If a tenant does something that is a violation, then go after the landlord (owner of the unit). But no selective enforcement/picking on tenants only. If the board hasn't been diligent about enforcement in the past, you can expect blowback, so an education campaign and improved communications should come first.

* Start investigating what you need to do to amend the current CC&Rs. You'll need to get an attorney involved with this to make sure your revised CC&Rs comply with the law. You'll also need to get an idea of the percentage of owners that would vote to approve the amendments. Obviously with rental restrictions, the time to get them approved is when the percentage of owner-occupied units is high. If you have a significant number of units being rented (25% - 33%), then it's likely that any amendment restricting rentals will not be approved. This means you'll have to rely on the previous suggestions.

I will refrain from repeating my usual rant about Airbnb-style "rentals"... :-)
LetA
(Nevada)

Posts:797


08/15/2019 5:35 AM  
I would be curious to know if in California you need a business license to rent out room or entire apartments or homes on sites such as booking dot com and Airbnb AND weather or not STR's still fall under FHA or Innkeeper laws.

With that said What do your CC&R's and R&R's say about boarders and short term rentals? Sounds like your board need to put on their bib boy pants and begin the fining process, and call the owner to a hearing.
SteveM9
(Massachusetts)

Posts:3367


08/15/2019 7:15 AM  
So if I bring a friend over to stay 1 night at my house is that a safety issue?
If I bring home a different date every night, am I putting everyone in the HOA at risk for safety?
If I charge them for using the room, does it suddenly become a safety issue?

Just trying to figure out what your "safety issue" is?
JohnC46
(South Carolina)

Posts:8749


08/15/2019 9:27 AM  
Posted By SteveM9 on 08/15/2019 7:15 AM
So if I bring a friend over to stay 1 night at my house is that a safety issue?
If I bring home a different date every night, am I putting everyone in the HOA at risk for safety?
If I charge them for using the room, does it suddenly become a safety issue?

Just trying to figure out what your "safety issue" is?




Me too.
CathyA3
(Ohio)

Posts:470


08/15/2019 9:50 AM  
Posted By JohnC46 on 08/15/2019 9:27 AM
Posted By SteveM9 on 08/15/2019 7:15 AM
So if I bring a friend over to stay 1 night at my house is that a safety issue?
If I bring home a different date every night, am I putting everyone in the HOA at risk for safety?
If I charge them for using the room, does it suddenly become a safety issue?

Just trying to figure out what your "safety issue" is?




Me too.




This comes from my association's attorney:

When you invite a steady stream of strangers into a community, crime rates tend to go up (and yes, people using Airbnb or similar service to rent your home are strangers - would you be willing to vouch for them?). In addition, an HOA community is insured as residential property. If there would be an incident resulting in an insurance claim (somebody gets injured, for instance), the insurer may look at this and say "wait a minute, this person is not a resident, it's a customer, and we don't cover commercial activity" and then the HOA is on the hook.

One of my major issues with so called Airbnb "rentals" is that they can change the risk profile for a community in ways that stable, signed-a-lease tenants do not. The increased risk should be borne by the person who benefits from it - in other words the owner of the unit that is being used as a hotel room - but it's being shifted onto the community as whole. This is one reason I believe hotel-style "rentals" are not in the best interest of a community.
RichardP13


Posts:0


08/15/2019 9:57 AM  
Check with the Code Enforcement agency of the city in which you reside. Many are now taking steps to put a stop to short term rentals, whether or not your documents spell that out. In this instance, city code will trump (how I hate using that word) your governing documents.
AugustinD


Posts:1944


08/15/2019 11:26 AM  
Nice post, CathyA3. I especially like the part about the insurance profile changing and this possibly being justification to nip HOA/condo short-term rentals in the bud, if at all possible.
LetA
(Nevada)

Posts:797


08/15/2019 6:26 PM  
Posted By SteveM9 on 08/15/2019 7:15 AM
So if I bring a friend over to stay 1 night at my house is that a safety issue?
If I bring home a different date every night, am I putting everyone in the HOA at risk for safety?
If I charge them for using the room, does it suddenly become a safety issue?

Just trying to figure out what your "safety issue" is?






In some jurisdictions It can go south rather quickly. Your friend can be a jerk, when you ask him to leave he says NO. You call the police and the police tell you you need to go through the eviction process to have him removed.

I worked security at a high rise condo. a relative of the owner had a party when the owner was away. First only the maximum (6) guest showed up, then all #3LL broke loose when a larger group of people showed up
"friends of another resident" Things went out of control..

Do ya see where things like this goes.. Personally, I can't stand STR's they are a logistical nightmare, especially for guard gated condos
LetA
(Nevada)

Posts:797


08/15/2019 6:29 PM  
Posted By CathyA3 on 08/15/2019 9:50 AM
Posted By JohnC46 on 08/15/2019 9:27 AM
Posted By SteveM9 on 08/15/2019 7:15 AM
So if I bring a friend over to stay 1 night at my house is that a safety issue?
If I bring home a different date every night, am I putting everyone in the HOA at risk for safety?
If I charge them for using the room, does it suddenly become a safety issue?

Just trying to figure out what your "safety issue" is?




Me too.




This comes from my association's attorney:

When you invite a steady stream of strangers into a community, crime rates tend to go up (and yes, people using Airbnb or similar service to rent your home are strangers - would you be willing to vouch for them?). In addition, an HOA community is insured as residential property. If there would be an incident resulting in an insurance claim (somebody gets injured, for instance), the insurer may look at this and say "wait a minute, this person is not a resident, it's a customer, and we don't cover commercial activity" and then the HOA is on the hook.

One of my major issues with so called Airbnb "rentals" is that they can change the risk profile for a community in ways that stable, signed-a-lease tenants do not. The increased risk should be borne by the person who benefits from it - in other words the owner of the unit that is being used as a hotel room - but it's being shifted onto the community as whole. This is one reason I believe hotel-style "rentals" are not in the best interest of a community.





And this is where it gets TRICKY... Is Airbnb a hotel motel service that falls under the innkeeper laws or does it fall under housing laws??? Innkeeper laws = instant eviction for overstaying accommodations. Housing laws, you're looking at 3 mos or much, much longer to evict.
JasonL3
(California)

Posts:5


08/18/2019 7:38 PM  
Hi Everyone

Quick update to the situation. So, I've contacted the local code enforcement as well as an HOA management firm. From the city's point of view, there's very little they can do to enforce without a city ordinance in place. Their suggestion is to contact city hall to see if we can get something passed to the effect. Prior to that, code enforcement or police do not have any rights to go into the property for evidence. And without evidence of the so called boarding behavior, there's not much they can do. It's a pretty tricky situation as mentioned above.

From the HOA point of view, we can pass a rule and ammend our CC&R's to that effect through a lawyer. However, enforcement can be difficult as such fines do not fall under HOA dues, so you may or may not be able to sue and win through small claims court.

That's where the situation currently stands and I'm sure this issue will creep up through other communities in the future.

Will keep this thread updated if any encouraging news or developments occur.

Thanks everyone so far for their input.

Jason
LauraW6
(Alabama)

Posts:1


09/16/2019 1:26 PM  
My Alabama HOA President is a well known powerful business man whose has a personal vendetta against those who question his authority.

He has NO oversight when it comes to the money, not the treasurer or the secretary, and he has a huge conflict of interest, owning and operating a Shell station, car wash and wrap around of new commercial buildings.

So the story goes;
Without warning or notice I received a letter from an Attorney giving me 14 days to evict my two guys who live upstairs in my home and have for 1 year & 2 years, and pay the Attorneys fees of $750- for determining that I broke the rules as they relate to Single Family Residence and Residential use ( they say I'm running a business out of my home)

Both are graduates of a Drug Rehab program, one is covered head to toe in tats, both drive old cars, and neither have been accused or suspected of a crime. Just FYI

I recieved my response back from the attorney. He has filed a lien +200 and I have a few days left to respond.

This has happened within a 6 week period! I'm concerned about Due Process. I don't think that in Alabama a POA needs a judgement rendered by the courts to actually foreclose on someone's property. I've lived here 20 years, raised my kids as a single parent here in this home, and the thought that this guy can force me to throw out two members of my extended family or force me into foreclosure doesn't seem right to me.

I appreciate reading all of your posts and thank you for sharing your experience, it's help enlighten me. Please don't stop, I would appreciate any good advice.!







JohnT38
(South Carolina)

Posts:117


09/16/2019 1:39 PM  
I am very confused.

1.) "...and he has a huge conflict of interest, owning and operating a Shell station, car wash and wrap around of new commercial buildings."

How does this create a conflict of interest?

2.) "... determining that I broke the rules as they relate to Single Family Residence and Residential use ( they say I'm running a business out of my home)"

Is he referencing some local ordinance for the town or city? If so, is he right?
DianaH9
(California)

Posts:4


09/16/2019 1:40 PM  
Hi Jason, I think that is a very good question and I agree I think this will come up more often in the future. If my neighbor was doing this, I would be furious! So I just looked at my CC&Rs and I think that it is worth talking to your Board and Mgnt. I would push to add it to the CC&Rs.

My CC&Rs talks about "Residential Use" only. If someone is doing short term rental would that be considered a business since its short term occupancy? My CC&Rs specifically spells out occupancy is more than 60 days.

I would hope as a board they would want to come together to protect your safety, well being and property value.
GenoS
(Florida)

Posts:3242


09/16/2019 5:15 PM  
I sympathize with the OP but claiming there's a "safety issue" is go-to objection for all sorts of things and without some concrete proof it's usually nothing more than a specious argument.
SteveM9
(Massachusetts)

Posts:3367


09/17/2019 7:40 AM  
Posted By LauraW6
So the story goes;
Without warning or notice I received a letter from an Attorney giving me 14 days to evict my two guys who live upstairs in my home and have for 1 year & 2 years, and pay the Attorneys fees of $750- for determining that I broke the rules as they relate to Single Family Residence and Residential use ( they say I'm running a business out of my home)




Talk with the HOA, find out what the issue was. It could be your tennants did something really bad, and now the HOA wants them out. Maybe they are selling drugs? Or some other type of business. Maybe not. You wont know unless you communicate with them.

As a landlord you should be ready for legal expenses. At this point your not knowledgeable enough to deal with this and need a lawyer. Now.
GenoS
(Florida)

Posts:3242


09/17/2019 11:52 AM  
Posted By DianaH9 on 09/16/2019 1:40 PM
My CC&Rs talks about "Residential Use" only. If someone is doing short term rental would that be considered a business since its short term occupancy?

I think this argument has been shot down, at least in Florida. In this case the courts ruled that renting to produce income does not alter the primary residential character of the property.

"The trial court agreed with the Acords and dismissed the association’s complaint. It reasoned that the proper focus in making a determination as to whether the short-term rental of the homes was in violation of the association’s occupancy restrictions was to determine the actual use undertaken at the properties. The trial court found that the nature of the homes’ use was not transformed from residential to business simply because the owners were subject to regulations that required licensure and they earned rental income."

On appeal,

"The panel also noted that these decisions further clarified that the nature of a property’s use is not transformed from residential to business simply because it may generate rental income."

... and ...

"The ruling also states that even if the covenants could be interpreted to preclude short-term vacation rentals, the omission of an explicit prohibition for that use would be considered fatal to the association’s position."

I think anyone using the, "They're renting the home to make money and that's prohibited under the CC&Rs which disallow any business activity!", will not win that argument. At least that's the way the courts are heading and not only in Florida.
MarkW18
(Florida)

Posts:142


09/17/2019 11:58 AM  
I understand from reading some posts here that some cities in California have banned short term rentals (less than 30 days) I would stay on top of your city in the event they change or add that restriction.
Please login to post a reply (click Member Login on the menu).
Forums > Homeowner Association > HOA Discussions > Enforcing Housing Rules



Get 2 months of free community web site hosting from Community123.com!



News Articles Provided by: Community Associations Network
News, articles and blogs about condos/HOA's

Only members have access to all features.
Click here to join HOATalk for Free! Members click here to login and access all features.







General Legal Notice:  The content of forum messages are from the posting member and have not been reviewed nor endorsed by HOATalk.com.  Messages posted by HOATalk or other members are for informational purposes only, are not legal or professional advice and do not constitute an attorney-client relationship.  Readers should not act upon this information without seeking professional counsel.  HOATalk is not a licensed attorney, CPA, tax advisor, financial advisor or any other licensed professional.  HOATalk accepts ads from sponsors but does not verify sponsor qualifications nor endorse/guarantee any sponsor's product or service.
HindmanSanchez Legal Notice:  (For messages posted by HindmanSanchez) This message has been prepared by HindmanSanchez for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Members of HOATalk.com should not act on this information without seeking professional counsel. Please do not send us confidential information unless you speak with one of our attorneys and get authorization to send that information to us. If you wish to initiate possible representation, please contact an attorney in our firm. Our attorneys are licensed to practice law in the state of Colorado only.

Legal Notice For Messages Posted by Sponsoring Attorneys: This message has been prepared by the sponsoring attorney for informational purposes only and does not constitute legal advice. This information is not intended to create, and receipt of it does not constitute an attorney-client relationship. Readers of HOATalk.com should not act on this information without seeking professional counsel. Please do not send any sponsoring attorney confidential information unless you speak with the sponsoring attorney or an attorney from the sponsoring attorney’s firm and get authorization to send that information to them. If you wish to initiate possible representation, please contact an attorney in the firm of the sponsoring attorney. Sponsoring attorneys that post messages here are licensed to practice law in a specific state or states as indicated in their message signature or sponsor’s profile page. (NOTE: A ‘sponsoring attorney’ is an attorney that is a HOATalk.com official sponsor and is identified as such in the posted message or on our sponsor page.)

Copyright HOA Talk.com, A Service of Community123 LLC ( Homeowners Association Discussions )   Terms Of Use  Privacy Statement