Wednesday, October 26, 2011

Holiday Cheer or Bah Humbug? Renting residential homes for the holidays

By: Richard G. Rumrell
There is nothing like having family members “Home for the Holidays!” But what happens when you don’t have room in the home or apartment for those family members who are visiting?Well, you can check the internet for hotel specials or look for homes for rent on a short term basis. There are many internet sites for each. ExpediaVRBOHomeAwayPriceline,Travelocity,, and various local web sites in the location of the visit are just a few sources.
Even if you find accommodations at a single family residence there may be other roadblocks to the visit. Some communities have enacted ordinances that prevent homeowners from renting their single family homes on a shot term basis. The cities claim that renting these homes to families on a short term basis (less than 30 days) are “commercial” activities prohibited in residential neighborhoods. Maui Vacation Rental Ass’n v. County of Maui, 2007 U.S. Dist.LEXIS 93176 (D. Haw. Dec. 19, 2007; Maui Vacation Rental Ass’n v. County of Maui, 303 Fed. Appx. 416, 2008 U.S. App. LEXIS 26533 (9th Cir. Haw. 2008).Instead of having affordable available housing in a family like setting, it is either booking several hotel rooms if available and affordable; or no family visit.
This governmental action creates many problems in addition to preventing families from uniting during holiday season.
This restrictive action affects property rights and alters long standing principles of zoning. Property owners have traditionally had full access to the bundle of rights they purchased when buying a home. These rights include mortgaging the property, conveying it to relatives upon death, selling and leasing the property and having quiet enjoyment.. Traditionally owners of single family property could exercise all of these rights unless they violated zoning laws. Gangemi v. Zoning Bd. of Appeals, 255 Conn. 143, 763 A.2d 1011, 2001 Conn. LEXIS 1 (2001)

Zoning laws are specific limitations on property owners’ rights to their property. The use of these “police powers” to regulate zoning had to have “some substantial relationship to the health, safety, morals, and general welfare” or they would be classified as arbitrary, unreasonable and unconstitutional, Village of Euclid, Ohio v. Amber Realty Company, 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 30., Courts have extended these rights to maintaining the quality of the neighborhood. However, the definition of “commercial” activity has not included the rental of residential property. Local governments have construed the short term rental as akin to “operating like a motel.” Shields Mt. Prop. Owners Ass’n v. Teffeteller, 2006 Tenn. App. LEXIS 106 (Tenn. Ct. App. 2006); But see Wade v. Patterson, 2009 Tenn. App. LEXIS 34(Tenn. Ct. App. Jan. 29, 2009.
Some courts are striking down these laws or interpretations by local governments and other courts are allowing these restrictive laws to stand. Ewing v. City of Carmel-by-the-Sea, 234 Cal. App. 3d 1579, 286 Cal. Rptr. 382, 1991 Cal. App. LEXIS 1173 Dianovich v. Grays Harbor County, 103 Wn. App. 1040, 2000 Wash. App. LEXIS 3126 (2000); Jackson & Co. (USA), Inc. v. Town of Avon, 166 P.3d 297, 2007 Colo. App. LEXIS 1211 (Colo. Ct. App. 2007).
The courts that are striking down these interpretations or laws have done so on the basis that use of the property for residential purposes based on duration of use is not proper use of zoning laws, Brown v. Sandy City Board of Adjustment, 957 P.2d 207 (1998)
The Court in Sandy City stated:
“We are not willing to import such a restriction. The Code does not limit the permitted use by referencing the type of estate the occupying family holds in the property or the duration of the occupancy. Thus, it is irrelevant what type of estate, if any estate at all, the occupying family has in the dwelling, i.e., whether the family holds a fee simple estate, a leasehold estate, a license, or no legal interest in the dwelling. It is equally irrelevant whether the occupying family stays for one year or ten days. The only relevant inquiry is whether the dwelling is being used for occupancy by a single family; if it is, the ordinance has not been violated.”
Brown v. Sandy City Board of Adjustment, 957 P.2d at 211;
See also City of Portland v. Carriage Inn 64 Ore. App. 751, 669 P.2d 1185, (1983);Landing Development Corp v City of Myrtle Beach, 285 S.C. 216, 329 S.E.2d 423
Courts that have permitted these interpretations or ordinances have done so because they considered the activities of renting residential homes on a short term basis as constituting “business activities” or commercial activity prohibited in residential neighborhoods.
The comparison of those decisions shows the following characteristics of each position.
Striking Down The RestrictionsAllowing The Restrictions
1. Zoning laws do not regulate use.1. The activities are tantamount to motels
2. Duration is not a permitted regulation.2. Resident means permanent not temporary
3. Regulation is ambiguous3. Preserving town character is public welfare
4. Due Process requires equal treatment4. Inconsistent with residential character
5. Targeting short term rentals is wrong5. Ordinances are to be given great weight
Court decisions involving Florida property rights have uniformly found for property owners over local governments. Rollison v. City of Key West, 875 So. 2d 659, 2004 Fla. App. LEXIS 5218, 29 Fla. L. Weekly D 922 (Fla. Dist. Ct. App. 3d Dist. 2004); Belair v. City of Treasure Island, 611 So. 2d 1285, 1992 Fla. App. LEXIS 12581, 18 Fla. L. Weekly D 66 (Fla. Dist. Ct. App. 2d Dist. 1992); Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232, 2001 U.S. App. LEXIS 20726, 14 Fla. L. Weekly Fed. C 1271 (11th Cir. 2001); Flava Works, Inc. v. City of Miami, 559 F. Supp. 2d 1318, 2008 U.S. Dist. LEXIS 43545 (S.D. Fla. 2008)
The various local governments that have instituted these restrictive ordinances have sought to limit the rentals based on issues of noise, parking violations and other nuisances. However, these local governments have yet to distinguish these violations from renters or homeowners whose duration is longer. The consequence of enacting these laws has been substantial and expensive litigation. Perhaps the holiday spirit will energize local governments to take a fresh look at allowing homeowners to keep their vested property rights

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