HOAs vs Airbnb Hosts

Airbnb has become the new norm for short term and long term vacation rentals throughout the globe. In beach cities like San Diego, short term rentals under 30 days are particularly popular. Clients frequently contact me asking whether they are permitted to rent out a room in their home, or their entire home, to Airbnb guests, when they live in a common interest development governed by a homeowners’ association. In most of these cases, a disgruntled neighbor reported the Airbnb host to the HOA. In order to determine whether the HOA permits Airbnb rentals, it is essential to review the Covenants Conditions and Restrictions (“CC&Rs) and Rules and Regulations implemented in the particular housing complex. Many CC&Rs contain leasing restrictions which prevent homeowners from renting their property for less than 30 days. What many homeowners do not know is that Airbnb or other short term rentals would qualify as a “lease” since the host is being paid money (or rent) in exchange for allowing the guest to occupy their home. This would mean that any leasing restrictions in the CC&Rs would apply to short term rentals. In other cases I have seen language restricting a homeowner from engaging in “business or commercial activity” in their home to the extent that such activity does not comply with the applicable zoning regulations. However, home businesses are generally permissible in residential zones, as long as there is no nuisance created (ie/ no unreasonable activity that is detectible by sight, smell or sound). In each of these cases, it will be necessary to review the zoning regulations for each particular property under the controlling city Municipal Code. Homeowners should be aware that if there is no language expressly restricting leases, transient occupancy, or short term vacation rentals in the controlling documents of the complex, the HOA cannot penalize owners for acting as an Airbnb host until the HOA Board takes action to amend the regulations, usually by a majority vote. Each case must be examined individually according to the local rules and governing documents, so it is important that you have an attorney review these documents before renting out your home to Airbnb guests in order to avoid being penalized by the HOA.

Comments 17

  1. Greetings, I am interested in the airbnb concept and would like to rent my single family home (which is under HOA) via aribnb. Can you help me understand how would it work?

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      Author

      Gaurav,
      Thanks for your interest in my firm. Please give me a call at my office 619-222-7300 and I would be happy to discuss the legalities of renting your property on Airbnb.

      -Ashley Peterson

      1. Hello. If an HOA votes to eliminate Airbnb can homeowners that have used Airbnb steadily for a couple years seek compensation from the HOA? It seems the HOA is taking away a valuable right of the homeowners and that if they decide to do that, decide to make that change, then they should be prepared to pay the homeowner something for the lost value? Does this have merit? Thank you in advance for your thoughts. Jim M.

  2. What about ‘Grandfather’ applications – Short term rentals were being conducted prior to HOA enacting any laws?

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      Author

      Unfortunately there are no “grandfather” applications for short term rentals that I am aware of. Any amendments to the HOA governing documents (ie. CC&Rs or rules and regulations) would apply equally to all units and none would be protected from enforcement action going forward.

  3. Do you do work outside of California? If not do you have someone you would recommend in Hattiesburg ms. I have a second home on a private lake there

  4. e X, Section 1 it states, “Each lot shall be used for residential purposes only, and no trade or business of any kind may be carried on therein.” Further, Article X, Section 8 states, “No lots or dwellings shall be sold under any time sharing, time interval, or assume of right-to-use program.”

    The hoa board where I live is siting the above cc and r as reason to prohibit Airbnb leases. There are other lessors living in the community and the all have access to common areas including. A private lake.. I have already conceded that my tenants won’t use the common areas. They insist that I not use Airbnb to lease my property and threaten fines. Further more some of the acreage and structures are out side of the hoa. The land sits astride the hoa boundary.

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      Author

      Thank you for your message. I have seen many HOAs try to use the “no trade or business” use as the basis to restrict short term rentals. My argument is that short term rentals are the equivalent of leasing the property, and leasing is permitted. Any claim that leasing would violate the “residential use only” clause would be an unlawful restriction on leasing and a complete ban on leasing. If the HOA governing documents however have a leasing restriction (ie/ 30 days or more) then short term rentals would be prohibited under that clause. I do not practice outside of California, so unfortunately I cannot provide you with any referrals to attorneys in other states. Good luck.

  5. My HOA claims that Airbnb is not allowed, and I’ve reviewed the CC&Rs but can’t find anything explicitly citing short-term rentals. They are citing this small section:

    “Use of the properties

    Residential purpose. Except for Lot 111, no Lot shall be used for any purpose other than residential purposes, and no building shall be erected, altered, placed or permitted to remain on any Lot other than one single—family dwelling, with the exception of home occupations as allowed in single-family dwelling in the City of Portland Planning and Zoning Code.”

    This section they are quoting does not seem to explicitly restrict Airbnb rentals in my opinion. I feel like they are interpreting this very vaguely and not explicitly stating a policy around short-term rentals. Additionally, leasing for long-term is not restricted in fact many of the houses in our HOA as leased out.

    Can my HOA restrict me from doing Airbnb even though the section they are quoting doesn’t explicitly address short-term rentals? They are threatening that if I move forward with doing Airbnb I can be fined and a lien placed on my property….

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    Author

    Melissa, thank you for your message. It is my opinion that an HOA cannot restrict short term rentals on the “residential use” language alone since leasing is permissible and that is the same thing as residential use. However, most CC&Rs have language restricting leasing (ie/ 30 day minimum, 60 day minimum, 1 year, etc.) and that would prevent you from being able to do any short term rentals. I would carefully review your CC&Rs to see what it says about leasing. Anything that restricts leasing for less than 30 days, or restricts “transient or hotel use” would prevent you from being able to do Airbnb.

  7. I currently sit on my HOA board in California and this issue has recently come up with one of our homeowners. For the past year he has listed his “casita” on ABB. We live in a gated golf course community (we are our own HOA) that is very secure, quiet, and a bit away from the city. You must be given permission to enter via a list the guard house checks before you enter. Your vehicle entry and exits are recorded as well.
    Another resident has made mention of this and would like this stopped. Our CC&R’s do state the 30 day lease or more making this practice a violation of our rules. Here is my issue:

    I feel the CC&R’s are antiquated and with the nature of how ABB’s process works it ensures a much more safe “occupant” then a neighbor or someone in the hotel room next to you. I have taken the liberty look at ALL the reviews of this particular resident (and found another with the same floor plan “casita” doing the same). His rating is the highest and nothing less than a perfect rating. The most common remarks were; the security, the cleanliness of the golf course, the views, the quietness. We have never had an issue with any of his guests because we never knew they were even there.
    I know the process to change the CC&R’s is some what of a headache but I’d like to see this changed. I feel people often are afraid of what they don’t know and in this is an excellent example.
    Am I l off my rocker to consider this proposed change?

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      Author

      Usually to amend the CC&Rs can be quite a hassle as you mentioned. Unless you can get all the board members to agree to allow short term rentals, it is unlikely that you will get any new amendments passed. That is the struggle many homeowners in an HOA face. I have heard that Airbnb is offering a financial incentive to have HOA’s allow short term rentals under their CC&Rs so that may be worth looking into. If your property is located in the coastal zone, any amendments to the CC&Rs that would allow short term rentals may also now require Coastal Commission approval which could be an additional burden.

  8. Hi Ashley, Great website! Our small HOA is on the coast in Oceanside Ca. Brief synopsis: rules and regs stated min. 30 rental. Cc&rs supposedly stated same. Original did in fact say this. There was scrivenors recording error with county of san diego. Page was missing in records. Went from page 18 to 20. 19 was missing in cc&rs. New owner bought a unit and began vacation renting in 2014. Knew rules and regs which existed for 30 years didn’t allow it but he said nothing in cc&rs prohibit it. All owners voted to prohibit short term rentals. He continued to do it. Cc&rs were amended to include missing page. HOA attorney is telling us there is nothing we can do until the law changes based on a case titled “Mandalay Shores” Is there anything we can do? Much appreciated.

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      Author

      Tammy, thank you for your comment. This is an interesting situation since your original CC&Rs restrict STR for less than 30 days. When the HOA provides copies of the governing documents to new homeowners, does it provide the complete copy with pg. 19 or does it just provide a copy of the county recorded document? It would be hard to argue the owner was on notice about the STR restriction if he never got a copy of the complete document. The 2018 case Greenfield v. Mandalay Shores states that any HOA located in the coastal zone is required to get a coastal development permit if they intend to change the existing use to prevent short term rentals. In this case, your HOA has theoretically been restricting STR for 30 yrs. If you can prove a history of restricting the STRs, then you may be able to argue against needing a coastal development permit, and that this amendment is purely to correct a recording error for the missing page. Obviously the HOA attorney would have more knowledge about the contents of the documents and your particular situation to better advise you on this issue.

  9. Hi Ashley,
    I have a home I use for an Airbnb. Before we purchased it, we consulted the city, the new build salesperson (who whas on the HOA Board as the new-build representative) and read the Covenants. We recently were told by the management company that we were in violation for using it as a short-term rental. We had our attorney give us his opinion of the language in the HOA. It states:
    “The term “lease”, as used herein, shall include any agreement for the leasing or rental of a Lot, Improvements thereon, or any portion thereof, including month-to-month rentals and subleses of not less than 30-days….” My Attorney said this statement is vague and is only stating was the term “lease” INCLUDES, not what it EXCLUDES. So my argument is that this line doesn’t exclude anything, it just clarifies what is “included”. Do you think I have an argument???

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    Author

    Hi Preston. Thank you for your email. The term “lease” has been deemed to include short term rentals because you are collecting money in exchange for the person to stay in your home which is the equivalent of a lease or rental agreement. Since the language states “any agreement for the leasing or rental of a lot” I would argue that it does include short term rentals. The language about “including month to month rentals and subleases” is just an additional inclusion. If your CC&Rs restrict you from leasing the property for a term of less than 30 days, then the HOA would likely be within their rights to fine you for conducting short term rentals. I think you would have difficulty challenging the language as being vague, but you certainly have a potential argument to be made. Unfortunately challenging the CC&RS would require legal action and would likely cost you more than what the HOA would fine you.

    1. Thanks Ashley,
      Our community is a small community of 82 homes. It is a new community that was just recently turned over to the Home Owners from the builder (KB Home). Our HOA only has a Covenant (apparently a “template” for new developments) and no other docs (such as “Rules and Regulations”). I would like to propose to our board that we write a new “Covenant” and “Rules and Regulations” that is more specific to our community. Do you have wording for a Covenant that would be inclusive of short-term leases – that I could suggest to our Owners?

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