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 38

  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?

    1. Post
      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.

        1. Hi there, based on the question as to whether owners can collect from HOA’s for a loss of income, did you post an answer to that question. I would like to know. STR was NOT restricted when I purchased and now ARE restricted after a community vote. This will cost me 15K per year.

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

    1. Post
      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.

    1. Post
      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….

  6. Post
    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?

    1. Post
      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.

    1. Post
      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???

  10. Post
    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?

  11. I purchased a home over a year ago with the purpose of using it as an air b and b . I checked the covenants of the homeowner’s association and there was nothing forbidding this, otherwise I wouldn’t have bought it. Now, because of problems with another rental in the subdivision, they are changing the covenants and trying to get rid of me…do I have a case in asking to be grandfathered in or do I need to give up and sell the place?

    1. Post
      Author

      Thank you for your blog question. Unfortunately when you purchase a condo in a homeowner’s association, you must abide by the HOA rules and regulations and covenants, conditions and restrictions (CC&Rs). You should carefully review those governing documents to determine what rules are in place. If there is a leasing restriction (ie/ no leasing of less than 30 days) you would be prohibited from doing Airbnb from your home and the HOA can fine you for each violation. These fines can become excessive so I would tread very carefully in continuing to operate the Airbnb from your condo if the HOA has already sent a violation notice. Unfortunately there are no “grandfather” rights even if there weren’t any rules when you bought the place and the HOA board can change the rules with a vote at any time.

  12. Hi Ashley,

    I’m so glad to have stumbled across your website! I bought a home a year ago in a small (25 lot) HOA in East Wenatchee WA. The Protective Covenants are unsophisticated, not very restrictive compared to others I have read, and only 9 pages long, very “boilerplate” and make absolutely no mention of any restrictions on leasing or renting your property, either long term or short term. We also have an Adult Family Home operating in our HOA, which is allowed and protected under state law. The Board just turned over and is comprised of only 3 individuals. The out going board member (we were down to one) told me I couldn’t operate an Air BnB. The clause they site in the CCR’s is: “Business. No store or business shall be carried on or permitted thereon which involved (sic) on premises sales or on premises customers, or which constitutes a nuisance.” They want me to put it to a majority vote to change the CCR’s to allow short-term rentals. I had to present my idea to the members at a meeting and some, but not all, were clearly hostile to the idea. Getting 17 yes votes is going to be a huge challenge.

    After reading your piece on this subject and the comments/questions, I am questioning if I really need to go this route. I now believe there is nothing to prevent me from doing what I want to do unless they change the CCR’s to state such (which will require a 2/3 majority vote in favor from members). A lease is not running a business, am I correct? A tenant is not a customer, correct? Can the HOA actually prevent me from running an Air BnB, based on this vague item in the CCR’s?

    If the answer is no, they can’t, I still view this as an opportunity to make a positive change to the CCR’s. I have a draft letter I want to send to all members. The new president is sympathetic to my situation. I am proposing language to amend the CCR’s that will address the issue and to allow members to do short-term rentals. I’m taking the angle that it will increase every member’s property value, as it will make our HOA more desirable to buy a home in. A property that produces or has the potential to produce income has more value than one that doesn’t. I will also propose conditions in the language of the amendment which protect the members if there are any issues directly caused by an Air BnB host., I will try to make a positive case for Air Bnb to dispel any negative or ignorant thoughts and fears members might have. It can also be a collaborative process if other members are interested in crafting the amendment.

    If I am successful in amending the CCR’s it could be a case study in how to deal with negative HOA’s on the matter. That could be really useful to other people facing hostile or ignorant HOA boards on the matter of short-term rentals.

    I would like to call you to discuss my situation to see what you think.

    Thank you!

    1. Post
      Author

      Thank you for your comment to my website blog post on short term rentals. Your situation is very common from the calls I get. A number of HOAs are trying to pursue the “business” use as being a violation of a single family residential use. I would argue strongly that if they allow leasing (all HOAs should allow it in some manner) then leasing is not a “business” purpose that would violate the CC&Rs. HOAs cannot have a blanket ban on leasing (at least under CA law), so it is likely allowed in some form, whether 1 month, 6 month or 1 year min term. I would also argue that home occupations are usually allowed in residential zones, so a “business” restriction could be a violation of the law. Any ambiguous language in the HOA documents will be construed against the drafter (ie/ HOA) so they will have the burden to prove it applies to the particular violation cited. It sounds like you are on the right track getting the board and members to vote to change the rules – I wish you success in that endeavor. Please keep in mind I am only licensed in CA, so I am not aware of any laws specific to your state in WA and cannot advise based on those laws or regulations.

  13. Ashley, wonderful blog and and insightful commentary. Knowing the power that HOAs can hold, how would you best track down the CC&Rs and other bylaws before purchasing a property? Is there some place they are recorded (county, state, etc)? I’d rather not call each listing agent to send me over a copy of the documents each time I’m analyzing a property for STR investment purposes?

    Thank you.

    1. Post
      Author

      Hi Mitchell,
      Thank you for your comment on my website. In answer to your question, all CC&Rs in a common interest development are required to be recorded with the county, so you can always go down to the county recorder’s office to pull a copy of the documents for free. Printing them will cost quite a bit since the charge is per page and CC&Rs are usually 50+ pages. If you have a good title officer, then they can also pull the document for you if you have the property address. You won’t be able to get a copy of the Bylaws since those are not recorded as a public document however HOA’s are required to provide all those documents to a prospective buyer if you enter into a purchase agreement, albeit for a fee. Hope this answered your questions but feel free to email me if not.

  14. Hi,
    we have a very unique situation. I have two homes, one governed by HOA and one not. I have my listing on ABB for the non-HOA home, but I sometimes trade spaces with the guests to let them stay at the HOA-home.
    The HOA-home was bought in 2010 and then they changes the CC&R in 2015 to prohibit the HOA-homes to place listing on ABB. In my case, I never have a listing for that on the ABB anyway, but they just happened to talk to some guests and found that they were from ABB.
    Now they are telling me to stop and pay fines. I told them that my listing is only for the non-HOA home and I trade spaces at times with the guests.
    Please advise if there is something that I could do here to help explain to HOA and am I really in violation of the HOA rules.
    The HOA rules are no short term rental and in 2015 they added no advertising for short term rental. But I argued that I only have my non-HOA home for the ABB rental and trade spaces with the guests. Please help.

    1. Post
      Author

      Peter,
      Thank you for your email. When you say you “trade spaces” with the guest does that mean they book your non-HOA home, and then you let them stay in the HOA home? If your HOA enacted regulations that restrict any short term rentals, then you would not be permitted to allow the guests to stay in your HOA home under any circumstances, even if they book the non-HOA house, because you are still collecting rent from them regardless of whether they stay in the HOA home or non-HOA home so you are conducting a short term rental in violation of the HOA rules. The HOA would be within their rights to fine you if guests were staying in your HOA home assuming they properly enacted such regulations. I would recommend you only advertise and let guests stay in the non-HOA home to avoid incurring any further penalties.

  15. Hello,
    I have this strange situation where the HOA first sent me a warning letter for a fine “up to $500” but then later increased it to $3000.
    I was sent a warning letter by HOA for alleged rental violation, the amount mentioned in the warning letter was up to $500 and a hearing date was given. I explained that I don’t agree to the fine and can’t attend the hearing and told them I was not violating. After the hearing without me, I received a mail stating the amount of fine as $500. I disagreed to the fine and asked for another hearing that I attended and again disagreed to the fine. But after that hearing I received a letter with $3000 fine saying they charge per month 500 dollars times 6 months. I am shocked, I have verified the warning letter stating “up to 500” and Nothing about per month in that. Isn’t this harassment? Can they charge more fine than the warning letter?? Please help me understand, can I go to small claims court or should I pay the fine first and then go to small claims court to dispute. Is it good enough case that they simply can’t increase the fine amount that was stated in the warning letter? I am really confused and it clearly feels harassment.

    1. Post
      Author

      Hi Rama,
      Thanks for your comment. It will depend on what your HOA policy states as far as penalties are concerned. If it says each penalty has an escalating fine, then each violation would incur a fine (ie/ each rental they claim you were conducting – if you conducted 6 rentals after the first notice, you would be fined for 6 separate violations). If you are conducting rentals in violation of your CC&Rs, then the HOA is within their rights to fine you and you are obligated to pay it. If you don’t pay the fine, they can charge interest and late fees and ultimately record a lien against your property, so it’s in your best interest to stop all rentals in violation of your CC&Rs and pay the fine.

  16. Ashley; my Phoenix HOA has not had any amendments, rules, or updates to the CC&Rs since 2004, well before the existence of AirBnB et al. There is ZERO language regarding <30-days rentals or anything similar. There is language stating that no "member can engage their property in a manner which is disruptive to others or prevents their quiet enjoyment"….
    1. If a Bast***rd neighbor is simply nosy and annoyed at my ABNB use, must he "prove" somehow with hard evidence that he's being disturbed? Or do I have the burden to prove he's not? Is it simply enough that an annoyed neighbor who's been a "B" in the past is simply 'annoyed' ? Is it a valid claim simply for him to complain?

    2. Given the fact that an HOA, if enough votes qualify, can subsequently modify the CC&Rs language; am I not in the clear if I've showed prior ABNB use to the new rules? Am I not showing prior use per the former CC&Rs, and therefore any new rules are targeting a solo owner?

    Sorry to blast away, but I'm prepping for battle…
    Lisa

    1. Post
      Author

      Hi Lisa,
      It is difficult to answer your questions because this is a case by case basis. I am also only licensed in CA so I cannot advise you on Arizona laws. That being said, generally if a neighbor complains about a nuisance, he should have to at least provide some evidence to the HOA to support his claim. If the actions don’t rise to the level of a private nuisance, then the neighbor will have a hard time prevailing. HOAs can always amend their CC&R language if they satisfy the number of votes required to do so as set forth in the CC&R documents. Just because you were allowed to do short term rentals before, does not exempt you or “grandfather” you in if the HOA decides to change the rules and amend the CC&Rs.

  17. Hi Ashley, Great blog with a lot of information. Our situation is similar to some of the above but is also unique. We own 2 condos in an HOA regulated building. We have received a letter from the HOA board threatening fines if our condos are not removed from AirBnB/VRBO sites as they claim we are currently violating the bylaws. We have obtained Short Term Occupancy Permits and are in full compliance with the city. We feel the board is attempting to badger us into submission but do not have the correct wording in their bylaws to enforce a violation against us.

    Section 5.3 “Use of Units” of our bylaws state “…the units are precluded from being RENTED for terms less than 30 days”.

    Our argument is that we are not RENTING our units, we are LEASING or LICENSING them and are thus not in violation of the bylaws as currently written. We believe the terms “LEASE” and “RENT” are similar in nature, however they are not the same. RENT and LEASE are used separately throughout the bylaws as distinct entities and thus we feel that they cannot be used interchangeably. Our bylaws state we are precluded from RENTING less than 30 days and does not state we cannot LEASE/LICENSE for less than 30 days and thus we believe we are in compliance.

    We argue a “RENTAL agreement” to be a contract that automatically renews upon its expiration (as long as both parties involved are in agreement). Either the landlord or tenant can alter the terms of the agreement at the end of each month. A landlord or tenant must give proper notice to stop the RENTAL agreement.

    We argue a “LEASE agreement” to be effective for a specific term/time stated in the agreement and is then considered to be ended. To remain on the property, both parties must enter into a new LEASE agreement.

    Both VRBO, AirBnB or any short term agreements most definitely have a specific term for the agreement and then expire. By nature we argue they are thus “LEASE” or possibly even “LICENSE” agreements and are by no means “RENTAL” agreements as they do not automatically renew and no interest in the property is granted.

    A “LICENSE agreement” is defined as privilege given to a licensee to be on premises for a certain purpose, but does not operate to confer on, or vest in, the licensee any title, interest or estate in such property. AirBnB terms state in their agreements that “this is an occupancy agreement as a license to occupy premises”.

    I am currently a board member and hope to bring this issue up for debate at the May 5th meeting. I am trying to collect as much background information on the subject as possible to support my view.

    Our hope is to form a reasonable doubt that our current bylaws, as written, do not prohibit term lease/license agreements, and that if this was brought before a court of law that we would have a fair chance of prevailing. Additionally our HOA has suffered from very poor management and advice from our property manager for a number of years. We are essentially broke. We barely have enough money in the checking account to pay the bills and our reserves are critically low. We hope by forming this reasonable doubt that they do not have the money or the willingness to to fight us in court.

    Thank you in advance for any advice or insight you might have.

    John

    1. Post
      Author

      Hi John,
      Thanks for your comment. Unfortunately short term rentals would fall under any leasing restriction categories, because a lease is defined as payment of money in exchange for lodging. Lease and rental are interchangeable terms from a legal perspective. Similarly a license is a granting of a right to do something in exchange for money. I think you would have a hard time arguing semantics between lease/rental. If your HOA has a 30 day leasing restriction, then you are prohibited from doing any rentals for less than 30 days. Compliance with HOA documents is one of the burdens of property ownership in an HOA so unfortunately you will have a hard time prevailing in this case.

  18. Hi Ashley,

    Great stuff on your web site and great comments. Getting ready to by a Condo in NC. HOA rep says short term rentals not allowed based on following. It says Condo cannot be used as “transient hotel”. It does allow for leasing and does not define length of lease term. Grateful for any comments!

    RESIDENTIAL USE RESTRICTIONS APPLICABLE TO CONDOMINIUM
    UNITS.
    Each Condominium Unit is hereby restricted to residential
    use by the Owner thereof, his immediate family, guests,
    invitees and lessees. No Owner of any Condominium Unit shall
    permit the use of the same for transient hotel or nonresidential
    purposes. Nothing herein contained shall prevent Declarant from
    maintaining sales and construction offices in any Condominium
    Unit during development. No Owner may lease less than the entire
    Unit.

    1. Post
      Author

      No. When you buy a property in a common interest development you cannot exempt your property from the HOA.

      1. Thanks for the response. I have an additional question. I have 40 acres and I noticed that they community trash can and the recycling bin are stored on my land. I asked why and I was told, verbally, that the previous owner allowed it. At first I thought, well why not be neighborly but shouldn’t the HOA be responsible for putting on land they own, like down at the stables or community house? It is convenient as it is right by one of the gates. But should’t they pay something to place it on my land?

  19. Also, our vote to restrict short-term rentals was 90%. My HOA says they only needed a 2/3 vote not 90% Which is it?

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