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 54

  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

      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

      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

      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.

        1. Post

          If your CC&Rs contain restrictive language about leasing, then they would be able to prevent an owner from renting rooms if they were not in compliance with the CC&Rs.

  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

    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

      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

      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

    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

      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

      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

      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

      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.

      1. The below ic clear no a b b … agreed?
        (k) No Unit shall be rented by the Unit Owner for transient or hotel purposes, which shall be defined as (i) rental for any period less than ninety (90) days, or (ii) any rentaliftheoccupantsoftheUnitsareprovidedcustomaryhotelservices. Otherthanthe foregoing restrictions, the Unit Owners shall have the right to lease their respective Units, provided that said lease is made subject to the covenants and restrictions in this Declaration and By-Laws, and any rules or regulations promulgated thereunder, and a failure by the Lessee to comply with the terms of these Documents shall be made a default under the lease. A Unit Owner shall be liable for the defaults ofhis Lessee under this Declaration and By-Laws or any rules or regulations promulgated thereunder. All leases shall be in writing and the Unit Owner shall promptly provide the Association with a copy of any lease of this sort.

        1. Post

          Hi Robin,
          Thanks for your question. Yes I would agree that the language in the CC&Rs your listed above would restrict any Airbnb or short term rentals for periods of less than 90 days. Short term rentals are deemed “transient” use due to the stays being less than 30 days so you would not be able to do any STR in the property due to these CC&Rs.

          1. We have at least 7 in our building one above me across the hall, etc. I am against them we enter through a common space so our entry codes are freely given out. Also it uses our scarce parking. I feel sure they people who do this act like they don’t know and when told they just keep doing it.

          2. Noted, this is my story. It is against our by laws. Over the last two years several have popped up. A real estate company which was appointed by our president to be our property manager has been selling the last bunch of condos for the h o a president, to me a total conflict of interest as they control the books and we have never seen no real financial documents. As far as health of h o a they can tell buyer whatever they want. Also president has allowed this whole real estate co. To move in our gym, code has been sending them letters since May to leave. I feel the real estate agent may have been using a b b as a selling point. 9/13 water in my unit from a b b 9/14 early informed owner (he should have moved his guest). Water again late 9/14 so I go up there and of course the a b b guest was not aware. Through all this I have family in as my husband of 26 years passed away 9/10. How do I make neighbors and h o a go by the rules?

  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

      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…

    1. Post

      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.


    1. Post

      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!

    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

    1. Post

      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?

  20. Hello,
    your blog is very informative, thank you! We have a strange situation in Northern California. We rent our house on Airbnb and live in another Condo. We have Airbnb listing only for the house, not for Condo. But we have lot of friends visit us at Condo. Couple of times a HOA board member spotted our friends parking in our spot, that triggered them to do some investigation and found that we have listings on Airbnb, so they immediately accused us of doing short term rental of the Condo. We explained them clearly that we are not renting the Condo, the listing is for the single family house that we own. We even showed them the details of the listing with the address of the house. But they continue to accuse us and accrue fines month after month and threatening to file a lawsuit. They say that we have the video footage of the guests going in and out of our parking lot and that constitutes the short term rental. We explained that we do have friends visiting us, its within our right to have friends visiting us as per the CC&R, but they are not agreeing to that and insisting that it is short term rental.
    What could I do in this situation? I have the evidence of that house ownership, address in the Airbnb listing and even declaration from some Airbnb guests that they have stayed at that house. We also requested them to contact the Airbnb directly and ask confirm everything. Please advise what should we do if they really file a lawsuit! Thanks a lot.

  21. Dear Ashley,

    In the City of Palm Desert, cA, STRs have traditionally been allowed. Recently the City has decided to outlaw STRs in just R-1 and R-2 areas. Problems arose because the City failed to enforce STR registrations, TOT collection and noise issues. Instead, the City choose to ban previously-registered legal STRs beginning Dec. 31, 2019. This seems unconstitutional. My question: Is it possible to organize an HOA of a few (3) homes in an R-1 neighborhood to continue permitting STRs?

    1. Post

      Hi Linda. Thank you for your comment. Unfortunately restrictions on short term rentals are city regulated, so cities are entitled to revise/amend their municipal code by a city council vote to restrict STR in certain zoning designations. It has been held to be constitutional under several CA court cases when STR restrictions are based on zoning. Creating an HOA would not allow you to get around the City restrictions. The only route you can take is to challenge the city by filing a lawsuit if they are not uniformly enforcing the restrictions after Dec 31, 2019.

  22. Thanks, Ashley, for the info – my question builds on a previous comment about an HOA threatening – or fining – an owner for simply having a post on Nextdoor that a property is available for 1-3 months (Our CR&R do not allow a lease of less than 1 year). The HOA is fining the person without any evidence that the listing is specifically for their condo in our association and without any evidence that any definitive violation has occurred. The unit has not been rented/leased/licensed for use – there has simply been a posting that the BOD has assumed refers to the unit in our association. Don’t they have some burden of proof that the unit in the posting refers to one in our association in addition to proof that money has changed hands and/or that someone is living in it?

    It’s also important to note that this neighbor has led a charge for more community involvement and called the BOD and management out for blatant mismanagement, while also submitting a successful petition to call a special meeting about questionable activity regarding our association’s finances. It seems that they are jumping the gun to retaliate against her, while being selective in their enforcement.

    I posted a similar post on NextDoor for research purposes to get an idea for the demand and the price people are willing to pay so that we could show other owners what income they are missing out on in hopes of getting the rule changed to allow month-to-month rentals. They never fined me.

    Interestingly enough, we have proof that several on the Board are renting their units out as STR’s to their business/personal contact lists, so they do not need to post ads (they are Realtors). Management is shady and allows some to get away with it.

    1. Post

      Hi Will. It would really depend on what your CC&Rs say. If there is a restriction on just “advertising” the STR property, then the HOA would likely be within their rights to fine the owner if they have proof of the listing violating the CC&Rs. If there is nothing in the CC&Rs on advertising restrictions, then they cannot fine a person just for listing the property online if no money is being exchanged and no bookings are being made. Most HOAs and cities are using third party companies like Host Compliance LLC to search the internet for any property addresses that violate the STR restrictions going back for many years, so that is likely how they found the property information. If the board is violating the CC&Rs, individual owners could bring suit claiming the board members are not in compliance since board members have a fiduciary duty to the association and its members.

  23. Hello Ashley, what a great website and information you have put out here.
    Today I got a mail from our HOA president. The HOA was about to change the CCRs and disallow STR. It has been stopped by the Homeowners for some faults in execution of the way they have set up the new CC&rs. So now we have some more time to fight against these changes. The Board of Directors want to ask all Homeowners about thier opinion if it shoudl ban STR or not. But as said today this new ADA “issue” came up. Which is totaly new for me. And I can not even find anything about that online so far. And the lawyer he mentioned is the HOA lawyer that messed up the CC&rs in the first place with some missinformations.
    So i will past it lile i got it, can you have a look and give me your opinion about it?

    But first let me bring forth what may be a show-stopper for this effort. I have been doing a lot of preparing for this, and all of that time-spent has exposed a critical element that needs to be addressed, and that is simply the ADA impact of allowing STR.

    What follows is NOT a literal legal dissection of this issue. It is just my attempt to create a discussion by sharing my understanding of things, as flawed, or as accurate as that understanding may be.

    So, here is where it starts:
    As a community, we are exempt from adhering to ADA requirements because we are a “private” members-only community. Access to our common facilities is for members (homeowners) and their tenants and guests. Our facilities are not open to the public. We cannot hold events in any of our common facilities such that the “public” could attend. For example, the HOA could hold Tennis Lessons, but only for members. We cannot put up flyers around San Rafael advertising Tennis Lessons (therefore allowing and even encouraging members of “the public” to attend), even if it’s free, because when members of “the public” are on the grounds, THAT is when ADA requirements kick in. Anywhere that the “public” has open and normal access to, and use of, must meet ADA requirements. (I’m probably saying this inaccurately, but you know what I mean.)

    STR is a commercial enterprise that brings members of “the public” into our community. They do not sign a lease (a tenant signs a lease). They are not members or tenants or guests. They are revenue-generating (commercial) temporary occupants. And as such, they are members of “the public”.

    Going forward from there: Any Short Term Renter that utilizes any common facility by use of member-only access (meaning they use a key or key card to access the pool or tennis courts) constitutes “HOA-authorized access” for a member of “the public”. (If they jump the fence, they’re no different than any other non-resident, which we deal with regularly, and this wouldn’t apply – this is “unauthorized access”.) Any access with a key by a STR would create a liability even if the STR homeowner prohibited the renters from accessing the facilities – excluding the use of the keys to the facilities as part of the rental agreement and even causing the renters to sign a document to that effect – but yet “somehow” the renters gained access to the key (the homeowner “accidentally” left the key in the house, for example) and the renter made “unauthorized use” of that key. Any use of any common facility key, whether intended by the homeowner or not, could constitute a breach of the closed “members only” barrier that protects us from the ADA mess.

    And then, all it would take is just one of the all-too-common ADA “watchdog” leeches to observe this “keyed” access by a member of “the public” one time (there doesn’t even need to be any sort of “incident” in the facility – but of course it’s much worse if there IS an “incident” with a short term renter, mostly because the potential exposure to a “leech” is vastly magnified) and my understanding is that the threshold is crossed at that moment and cannot be uncrossed. I believe that all ADA compliance becomes immediately mandatory and all physical changes to all facilities can be forced upon us without recourse. Dan did a back-of-the-envelope calculation of this and it appears it could be something close to $200,000. I suppose it could even go so far as requiring any STR home to be fully ADA compliant.

    We asked our Lawyer for his opinion on this, and his response was that (paraphrasing) while this risk of getting “caught” may be low, the penalty is extremely high, and his advice would be to not even put that door there that could be opened. His advice would be to not allow STR. (This is a legal stance that has also been taken by other HOA lawyers on behalf of their communities.)

    That being said, there is of course, an alternate path which provides a way to keep the topic of STR alive, and that would be to, as a community, choose to proactively implement all necessary ADA-compliant elements up front. Besides eliminating all ADA risk inherent to STR, there are other benefits to doing this, including the fact that we’re all getting older and having ADA facilities will become more and more useful as time goes on. SO the question becomes, would it be worthwhile and desirable in the minds of the members to undergo this expense now, or in some version of implementation over some short (or long) period of time. THAT would be a candidate for a survey question perhaps.

    But keep in mind that even if we snapped our fingers and could cause all ADA compliance elements to suddenly be in place, we’d still need to have a survey to find out if our residents even WANT to have STR.

    Bottom line: My first question to the group is, “Given the nature of this whole ADA thing, do we think it’s even worth doing a survey at all,?” I sort of think it may not be. (Don’t get me wrong; I’m not against STR at all. I am very, VERY neutral.) And because of my neutrality, I’m glad to be proved wrong.

    End of the mail.

    Thank you so much,

    1. Post

      Hi Willy. Thanks for your insightful comment. You bring up an excellent point. ADA does not typically apply to residential properties currently, so homeowners are exempt from this requirement but hotels are not. Short term rentals are being treated more and more like a commercial use and not residential, so I expect we may see some ADA lawsuits pop up in the near future given the hefty penalties as you mentioned. I also think it’s definitely a grey area in the law right now, so as your attorney suggested, limiting or restricting STR in homeowner association complexes where there are common areas may be preferable to limit your risk. The only downside is that in CA coastal zones, HOAs cannot enact new restrictions that completely ban STR so that is a new barrier for HOAs based on the Greenfield v. Mandalay Shores case.

  24. Great post.

    Our HOA has a rule that “No lease shall be for a period of less than thirty (30) days.”

    An owner sublet their unit to a company that runs AirBnB rentals. The owner says it’s a hotel room, and viewed as transient (in contradiction to your article). They also state that the CC&Rs don’t explicitly ban short-term rentals, but I thought this was pretty explicit.

    Are there any loopholes via this arrangement?

    1. Post

      A lease is defined as the payment of money or something of value in exchange for the exclusive right to occupy a residence. I think the Airbnb rental company would have a hard time arguing that a short term rental is not a “lease” when they are being paid rent in exchange for the right to occupy the residence. The 30 day restriction seems pretty clear to me in the CC&Rs that it would prevent any short term rentals.

Leave a Reply to Michelle Fuller Cancel reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.