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Was the New York City homeowner renting on a short-term basis running an illegal hotel operation prior to Governor Paterson signing the bill into law?

July 27, 2010

Assemblyman Richard Gottfried and Senator Liz Krueger promoted the new law as a measure giving New York City the “greater power to crack down on illegal hotels.”[1]

The new Law as written would make it illegal for any multiple dwelling (any building with over 2 rentals units) to rent even 1 of their units out for under 30 days (including brownstone and townhouse owners unless their property has 2 or fewer units).

Proponents of the Bill state that it will “fulfill the original Intent of the law”:

The memorandum accompanying the bill stated that “this bill will fulfill the original intent of the law, as construed by enforcing agencies, including the New York City Department of Buildings, by modifying the specific provisions of the Multiple Dwelling Law and applicable local codes […].”

However it seems that in the process of clarifying the “intent” of the law, this storm of controversy has turned into a tornado, ever broader and more encompassing, sweeping up owners of individual Condos, Co-Op units, and rental apartments alike in the process.

The Multiple Dwelling Law was enacted in 1929. At the time the legislative intent of the law was stated to be the following:

“It is hereby declared that intensive occupation of multiple dwelling sites, overcrowding of multiple dwelling rooms, inadequate provision for light and air, and insufficient protection against the defective provision for escape from fire, and improper sanitation of multiple dwellings in certain areas of the state are a menace to the health, safety, morals, welfare, and reasonable comfort of the citizens of the state; and that the establishment and maintenance of proper housing standards requiring sufficient light, air, sanitation and protection from fire hazards are essential to the public welfare. Therefore the provisions hereinafter prescribed are enacted and their necessity in the public interest is hereby declared as a matter of legislative determination.” [2]

The mention of “intensive occupation” seems to indicate the law was geared toward large buildings with multiple units being used in a way that was unregulated, leading to substandard conditions that were a threat to health, safety, and public welfare. Clearly it doesn’t look like it was meant to target individual and small property owners, so how did the “little guy” get caught up in all this mess?

Laws can’t be effective if they are not enforceable. (The alleged intent behind the new legislation)

City of New York v. 330 Continental LLC, 60 AD3d 226, 231 (1st Dept. 2009) . [3]

In 2007, a lawsuit was brought by the City of New York against a group of so-called illegal hotels to prevent them from renting some of the units for stays less than 30 days.  The court in City of New York v. 330 Continental LLC, 60 AD3d 226, 231 (1st Dept. 2009) refused to enjoin these three SRO apartments buildings for renting short-term stating:

Stays of less than 30 days in Class A multiple dwellings do not amount to a violation of local zoning laws or the buildings’ certificates of occupancy as long as only a minority of units in these buildings are used for short-term occupancy.

The Court found that the City failed to demonstrate that most of the units in any of the buildings were rented for such short-term occupancy and that the rental of a minority of a building’s units for nonpermanent occupancy would violate neither the ZR nor the certificate of occupancy, due in part to the following:

The ZR permits “apartment hotels” (such as the buildings in question) in general residential districts, and the ZR defines an “apartment hotel” as a building whose units “are used primarily for permanent occupancy”  (ZR § 12-10 [emphasis added]).

Multiple Dwelling Law § 4 (8) (a) requires that a class A multiple dwelling be “occupied, as a rule, for permanent residence purposes” (emphasis added). Here again, the statute’s use of the phrase “as a rule” indicates that a secondary use of the building, different from the specified primary use, is permitted.

The Court cited these examples of vagueness and ambiguity and further pointed out the City failed to identify any legal authority that defined what constituted “transient” and “permanent” occupancy, relying instead on a definition derived from the affidavit of an architect employed by the Department of Buildings.

The Aftermath

The proponents of the new Bill claim it was drawn up to address the recent ruling in [City of New York v. 330 Continental LLC].” The  memorandum accompanying the new law  provided “[i]t is impossible to enforce the law against illegal hotels if the law is interpreted in the manner compelled in  this case” [4]

Legislators craft and propose the law but it lies with the Courts to interpret the law. It seems it will take another case brought before the courts by either the City or its residents to determine the new interpretation of this Law and if it is truly fulfilling its “intent”. Only time will tell what the devastating aftermath of this storm we have weathered will be, and if New Yorkers and property owners worldwide will be left standing in the rubble to pick up the pieces.

——-

[1] http://www.lizkrueger.com/2010/07/victory-governor-paterson-signs-illegal-hotels-bill/
[2] New York State Multiple Dwelling Law

[3] http://scholar.google.com/scholar_case?case=17747922563446768523&q=new+york+city+%22330+continental%22&hl=en&as_sdt=100000000000002
[4] Ibid

Assemblyman Richard Gottfried and Senator Liz Krueger promoted the new law as a measure giving New York City the “greater power to crack down on illegal hotels.”[1]

The new Law as written would make it illegal for any multiple dwelling (any building with over 2 rentals units) to rent even 1 of their units out for under 30 days (including brownstone and townhouse owners unless their property has 2 or fewer units).

Proponents of the Bill state that it will “fulfill the original Intent of the law”:

The memorandum accompanying the bill stated that “this bill will fulfill the original intent of the law, as construed by enforcing agencies, including the New York City Department of Buildings, by modifying the specific provisions of the Multiple Dwelling Law and applicable local codes […].”

However it seems that in the process of clarifying the “intent” of the law, this storm of controversy has turned into a tornado, ever broader and more encompassing, sweeping up owners of individual Condos, Co-Op units, and rental apartments alike in the process.

The Multiple Dwelling Law was enacted in 1929. At the time the legislative intent of the law was stated to be the following:

“It is hereby declared that intensive occupation of multiple

dwelling sites, overcrowding of multiple dwelling rooms,

inadequate provision for light and air, and insufficient

protection against the defective provision for escape from fire,

and improper sanitation of multiple dwellings in certain areas of

the state are a menace to the health, safety, morals, welfare,

and reasonable comfort of the citizens of the state; and that the

establishment and maintenance of proper housing standards

requiring sufficient light, air, sanitation and protection from

fire hazards are essential to the public welfare. Therefore the

provisions hereinafter prescribed are enacted and their necessity

in the public interest is hereby declared as a matter of

legislative determination.” [2]

The mention of “intensive occupation” seems to indicate the law was geared toward large buildings with multiple units being used in a way that was unregulated, leading to substandard conditions that were a threat to health, safety, and public welfare. Clearly it doesn’t look like it was meant to target individual and small property owners, so how did the “little guy” get caught up in all this mess?

Laws can’t be effective if they are not enforceable. (The alleged intent behind the new legislation)

City of New York v. 330 Continental LLC, 60 AD3d 226, 231 (1st Dept. 2009)[3].

When a suit was brought by the City to enforce such provisions against a group of so-called illegal hotels, and prevent rentals of less than 30 days. The Court deciding against the City citing that:

Stays of less than 30 days in Class A multiple dwellings do not amount to a violation of local zoning laws or the buildings’ certificates of occupancy as long as only a minority of units in these buildings are used for short-term occupancy.

The Court found that the City failed to demonstrate that most of the units in any of the buildings were rented for such short-term occupancy and that the rental of a minority of a building’s units for nonpermanent occupancy would violate neither the ZR nor the certificate of occupancy, due in part to the following:

The ZR permits “apartment hotels” (such as the buildings in question) in general residential districts, and the ZR defines an “apartment hotel” as a building whose units “are used primarily for permanent occupancy”  (ZR § 12-10 [emphasis added]).

Multiple Dwelling Law § 4 (8) (a) requires that a class A multiple dwelling be “occupied, as a rule, for permanent residence purposes” (emphasis added). Here again, the statute’s use of the phrase “as a rule” indicates that a secondary use of the building, different from the specified primary use, is permitted.

The Court cited these examples of vagueness and ambiguity and further pointed out the City failed to identify any legal authority that defined what constituted “transient” and “permanent” occupancy, relying instead on a definition derived from the affidavit of an architect employed by the Department of Buildings.

The Aftermath

The proponents of the new Bill claim it was drawn up to address the recent ruling in [City of New York v. 330 Continental LLC].” The  memorandum accompanying the new law  provided “[i]t is impossible to enforce the law against illegal hotels if the law is interpreted in the manner compelled in  this case[4]

Legislators craft and propose the law but it lies with the Courts to interpret the law. It seems it will take another case brought before the courts by either the City or its residents to determine the new interpretation of this Law and if it is truly fulfilling its “intent”. Only time will tell what the devastating aftermath of this storm we have weathered will be, and if New Yorkers and property owners worldwide will be left standing in the rubble to pick up the pieces

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8 Comments
  1. fab permalink

    Hello
    I would like to rent an apartment with Airbnb in July.
    A student lives in the apartment and rent it when he is on holidays or abroad.
    Will it be legal to rent such an apartment, which can be considered as an “permanent household”?
    thanks
    fab

    • Dear Fab,

      Thank you for your question. Assuming that the apartment is in a class A multiple dwelling (a residential building with three apartments or more), renting it for less than thirty days will be unlawful come May 2011. Let us know if you have additional concerns or questions.

      Protect Vacation Tental Team

      • fab permalink

        Thanks for the quick answer !
        it is a class A Dwelling. If it is illegal to rent it, what can be the consequences for the traveler ?

        for information, I asked the question to some Airbnb owners, and a lot of them even don’t know about the law.

        thanks
        fab

      • Dear Fabrice,

        One of the risks for travelers renting illegal short-term rentals in New-York City is eviction. Earlier this year, we have seen stories of city marshals putting travelers on the streets. Read the following article for more information: http://nypress.com/tourists-evicted-neighbors-relieved/

        Some tips to avoid falling into the trap:

        – Always ask the owner/manager/travel agent whether the unit may be lawfully rented for less than 30 days.
        – Try locate the certificate of occupancy of the building on the Department of Building Website to verify its legal use and occupancy (for example J-1 units may be rented on a short term basis)

        You may find yourself thrown out to the streets and forced to book an expensive hotel room!

  2. fleurdesel9 permalink

    Take a look at Liz Krueger website. She is inciting tenants to snitch!!!???

    Liz Krueger’s Tips on Making 3-1-1 Work for YOU!

    Tuesday, July 27th, 2010
    “311” is a free service available via phone (3-1-1) and the internet (www.nyc.gov/apps/311/) that offers access to government services. Through 3-1-1 you can obtain information, report a problem and request services. To best utilize these services and ensure your requests and/or concerns are addressed, Senator Krueger suggests the following steps:

    Before You Call 3-1-1:

    1.) Compile a list of details supporting your claim. Your report should be as specific as possible and should include: dates, times, locations and names (if possible). For example, if you believe your building is running an “illegal hotel,” then you should have the address, apartment number(s) in question and the dates/times you have seen people coming in/out.

    2.) Know what you’re going to say before you call. Before you call, make an outline of what you want to say. This will help ensure you do not leave out any details or stray off message. A clear, concise complaint has the greatest chance of being addressed quickly.

    3.) Use a “buzz word” to describe your problem. For example, if apartments are being rented out for 30 days or less, it is considered an “illegal hotel.” Or, if you are concerned about your building’s improper trash disposal then refer to it as a trash problem and/or a rodent problem.

    While on the phone with 3-1-1, get certain information:

    1.) The Service Request Number for the report you’ve just made. Each report is given a Service Request Number which will allow you to track the status of the report in the future.

    2.) The agency your report is being sent to. It will make it much easier to follow up with your claim if you know which agency is working on it.

    3.) The name of the 3-1-1 representative you speak to and the date/time you called.

    After you have filed your report:

    1.) Check the status of your report by using your Service Request Number. You can do this over the phone or via the website.

    2.) If your claim is not being addressed, contact Senator Krueger’s office for further assistance. If you have not received any status updates within a reasonable timeframe, we can follow up on your claim. However, in order to do so we will need your Service Request Number. To contact a member of Senator Krueger’s staff, please call: (212) 490-9535.

  3. fleurdesel9 permalink

    What’s going on? will we fight this bill?

  4. fleurdesel9 permalink

    Fighting a Short-Term Rental Ban

    Note: This is an edited transcript of Christine Karpinski’s How To Rent Vacation Properties by Owner podcast .

    Host: Christine Karpinski

    Guest: Melinda DiPerna, a property manager and owner of three vacation rental homes: a coastal cottage in Midcoast, Maine, a golf condo in Palm Desert, California, and a beach condo in Oceanside, California.

    Topics Covered:
    How to work together with other homeowners to oppose a proposed ban
    Why rental bans get proposed
    The process of overturning a rental ban
    The benefits of being involved in your Homeowner’s Association
    The process of voting on a vacation rental ban
    How to avoid vacation rental ban proposals

    Christine: Today’s guest is Melinda DiPerna. She is going to speak to us about her experience with a proposed vacation rental ban by her homeowners’ association. She started renting her vacation homes in 1999 to help pay the mortgage in Maine, and is now not only a by-owner manager, but she also manages properties for other owners in her neighborhoods. Melinda, you want to just give us brief history of what happened
    and how it came about?

    Melinda: Sure. I own a condo at Palm Valley Country club in Palm Desert, California, and I bought that in the spring of 2005. When I bought that condo, I read the CC&Rs, I checked the minutes of the meetings, I looked at the local ordinances, I paid my property taxes and my transient occupancy taxes, and ran quite smoothly there for a year.

    Then one day when I walked out to the mailbox, I found a letter in it. And it said, “In a month we will be sending you a ballot and that ballot will ask the community to vote on whether to ban rentals of 30 days or less.” Imagine my surprise! My hands started shaking. I thought, “Oh my goodness, this is my livelihood,” because this condo I did buy as an investment and there was no way I could afford it without renting it out.

    Christine: Wow, so what did you do next?

    Melinda: The next thing I did, after I calmed down, was to e-mail my HOA to find out what was happening, and then to call and talk to the general manager and find out what the reasoning was behind this. The next thing I did was to get on VRBO and HomeAway and all the other rental listing sites, and to start to gather the names, telephone numbers, and e-mail addresses of owners who rent to start to network with them, to see if we have any power in numbers, and to see if there was anything we could do.

    Christine: And were you successful in gathering homeowners’ names, email addresses, and contact information, or did VRBO send out something on your behalf?

    Melinda: I didn’t ask VRBO to do that. I did it the hard way.

    Christine: Okay, so here is the deal just for our listeners: here at HomeAway, and VRBO, the Owner Community, we serve this purpose. If you have an impending ban, let me know, and we can send out an e-mail on your behalf. We obviously have to have proof and all those sorts of things. We have to make sure it is truly an impending ban and what the issues are, but we can help you get the word out, so don’t be afraid to e- mail us and let us know. We are here to help; we are all in this industry together.

    Were you able to get a list of all the homeowners from your homeowners’ association?
    Melinda: Well, that was the tricky thing. We fell in a crack in the California law. Now today, by law, they have to supply you with that list.
    Christine: Which is, by the way, the law in most states, that if you request the list of all the rest of the homeowners they have to provide it.
    Melinda: Right. And they were willing to provide it but they don’t have to do it free of charge.
    Christine: And guess what? The price just went up, $25,000.
    Melinda: It wasn’t cheap. They weren’t trying to be difficult but they were trying to obey just the letter of the law at the time. So, we circumvented that, and we found out something that most realtors already know is that a title company would be happy to give you a list of the names and addresses. We got it in electronic format as well as labels and such. And so we went ahead, and we kind of formed a steering committee with about five of us who could put the time and the energy in.
    Christine: And what about money? Time, energy, and I’m thinking money.
    Melinda: Well the good thing about the open forum meeting that we had was that we got to meet about 30 other owners, and many of them offered to contribute money. They didn’t have the time or the energy, but they would contribute money. We got together with some local property managers. There’s one to three of them that have a lot of listings in this condo development.
    Christine: What a great idea! That’s another thing that people don’t necessarily think about, is going to the property managers. Rent-by-owners automatically assume that property managers and rent-by-owners are two opposing forces, but in reality they’re not. We’re really in the same industry, we’re in the same business, it’s just a matter of who the rental checks are being written to and what a great idea. Were the property managers receptive?

    Melinda: They were wonderful. They were fantastic. We had one in particular that has about 80 units, he actually has a physical building right outside our country club and he had already sent a letter to all of his owners, but then he also sent another one requesting that they contact us, that they contribute money, that they get on our email loop so that we could all be in communication, because remember at this point, we felt that we might even have as few as 60 days to beat this rental ban. That’s hard, to get a lot of independent owners who live all across the country, and even the world, together to fight something.

    Christine: Okay, do you know what the motivation was for this ban in the first place? I imagine some homeowners that live there were griping. Is that what it was?

    Melinda: It’s kind of interesting. We looked in the history because we thought we might have to go forward with a lawsuit at one point. We looked to find out if there was any record of any complaint, or should we have seen this coming, were we doing something wrong? And when it came right down to it, what it really consisted of was people talking on the golf course, people talking at dinner, somebody complaining, ‘Oh, there were people shooting balls on the golf course last night or into the lake.’ More anecdotal type stories that were annoyances.

    Christine: And there’s no guarantees that those are renters all the time.

    Melinda: You took the words out of my mouth. That is what we ended up finding later. I later served on a committee for the HOA about this, and one of the things that we found was we couldn’t track whether these were renters or guests of owners. The community is only occupied by about 30% of homeowners full-time, year-round, because it is in the desert and it gets kind of hot in the summer. And then another, say 30‑50%, are seasonal residents or vacation home users, leaving a small portion that are actually vacation rental owners. But like in most communities, people kind of fear what they are not, and they assume that it was vacation rental guests causing the problem.

    Christine: I find that true in a lot of aspects of life. A lot of times people fear the unknown.
    But, certainly what you did was you took your anger and you turned it into positive energy and really worked toward the cause. But what I really want to ask is…how much did this all cost?

    Melinda: Well, the first mailing that we made, one of our owners is a realtor and has her own office so she donated the time and the supplies and all we had to pay for were the postage costs, so the math of 1,300 units times 30 cents. Then we got some additional funding throughout, and I just found out yesterday that we’ve got about $100 left in the account.

    So we sent out, I believe it was, two or three mass mailings, and we also used the funds to conference call our steering committee. And the rest of the materials and labor we really got in kind because many of the owners are small business owners and were willing to work with us that way.

    But it wasn’t something that I could have done as one person, or that I would have liked to have done. I guess I could have because when you’re looking at a condo that costs half a million dollars, that’s a big investment to lose. The real estate market was starting to soften at that time and the thought of a lot of condos going up for sale because they could no longer rent them just sounded disastrous to me.

    Christine: You know, that’s a great point, is that if something like this does happen, it affects everybody’s property value and just to let those permanent residents know, it affects their values as well. Properties in complexes or HOAs where they allow vacation rentals, those properties typically have a higher appreciation rate, their values hold stronger because the affordability of that property with the ability to rent it out definitely gets factored in. If all of a sudden they banned vacation rentals, all these properties would go on the market at the same time and it just would not be good for anybody.

    Melinda: It’s funny to hear you say that, and I know that to be true, but there are a lot of owners out there, and I quote from the 2000 HOA meeting, it was suggested that an overabundance of rental units bring down property value. So a lot of it, we found out as I worked on this ad hoc leasing committee over the last year, was communication and information and de‑bunking old myths. Because we kept hearing over and over again, “Gee if all property owners were like you and a few of the others, we wouldn’t have any problems here,” and we said, “You know what, most property owners are like that.” And most guests are just like you. We don’t want anyone partying and overcrowding and ruining our golf course and doing anything to our properties any more than you do.
    Christine: And the thing is too, it’s pointing out that the people that you’re renting to, this is not a typical landlord situation. When you’re a landlord you’re renting to people who may not necessarily be able to afford to be a homeowner, maybe they don’t know how to take care of a home, and when we rent vacation rentals, we’re first of all renting at a pretty hefty price per week, you’re talking about renting to a demographic of doctors and lawyers and professionals, this is not landlording.

    Melinda: No, this is entirely different Christine. I own both types of properties and people will ask me which one I prefer, I said vacation rentals by far. I never have damage. I never withhold security deposits, I treat them like my guests, I put good things in my rentals and they take good care of them.
    Christine: So once you got together with all these people, you formed the committees, you were informing the rest of the community, how receptive were they to that information that you were informing them about the owners that are good?

    Melinda: Well you know what, it’s like anything: 99% of the people are receptive and want to be educated, and there’s that 1% that makes you cry, that sends a nasty e-mail or “How did you get my address? Don’t send me anything else,” but the majority of the people were happy to be educated because they understood that we weren’t telling them to do things our way, we were just trying to educate them that we should have this right and with that right comes responsibility and we’re willing to live up to our responsibility.

    Christine: Right. Now when it came to the actual process I suppose you then all had to go for a vote, and do you know if money was a motivator at all with regards to possibly opposing the ban? I’ve sat on HOA boards, and I know that it’s very costly to amend your homeowners’ association documents. One community that I sat on, it was about $30,000 to record, rewrite, because it all has to go through attorneys and so it’s a very costly endeavor as well to amend your HOA documents. Was that brought up at all in any of the arguments?

    Melinda: Well, I think what happened was early 2006, the board had decided that they were going to bring our CC&Rs up to date as they said, and our rules and regulations. And they chose first a signed amendment, which had to do with for rent and for sale signs, and they decided to include this ban in the same amendment. We got them to split them out because it became pretty clear after a week of phone calls that we weren’t going to sit silently by and let this happen, and we said, we’re not opposed to limiting the way people do signage, that’s not the way business is done anymore anyway, but we are opposed to losing our rights to rent and rent responsibly.

    But anyway, so they were in the process of changing CC&Rs and they decided to send this out and it’s interesting, one board member still contends that he feels this was a good effort because it got our attention. And to some extent he has that point, when you have any HOA group that most of the residents don’t live on‑site, it is hard to get us to go to their meetings. It’s a hardship to get us to go to the annual meeting which was the one thing I would say, “Shame on me.”

    Shame on all of us, because we weren’t there at the annual HOA meeting in 2006 when this first idea was presented. And we were all there in 2007, I’ll tell you that, even though we had to rent hotel rooms to stay there.

    Christine: We actually lived in a neighborhood in Atlanta that had a very strong HOA. It was amazing that even permanent residents don’t show up to the annual meeting. You have to have a quorum in order to have a vote, and I’m finding more and more people are showing up.

    And kudos to the homeowner’s associations as well. A lot of times, what they’re doing is that they’re having neighborhood meet‑and‑greet weekends on their annual homeowners weekend. It becomes a whole, big party and everybody gets to meet everybody. There are covered dish suppers and drinks and all those sorts of things so that everybody can get to know each other. It’s really, really, really important to go to your HOA meetings.

    Melinda: You know, I have to give a great example of an HOA that does this. I do own a place down at Oceanside, CA. They had a lot of friction, I guess, ten years ago, before I owned there, between vacation rental owners and permanent residents.

    They do a really smart thing, among other things, now, that they do smart. They hold a post‑season party. After the busy summer season, they have a post‑season party. That way, it’s not a hardship on anyone. It’s a more relaxed, less crowded time.

    They also hold a holiday party, and it’s kind of like what you’re talking about. Although it’s not a meet‑and‑greet, bring your own, it’s something that we all contribute to. It gives us a time to get together when it’s not a hardship on any owner. It’s really a fantastic community. It’s a great example of the HOA, the permanent residents, and the rental owners working together.

    They’ve got something there that is kind of my example for anyone. They have a rental owner’s coalition. The sole purpose of that group, now, is to deal with issues with rentals. They both protect their interest, but also work with the HOA and work with the permanent residents. They understand that there is a cost associated when suddenly, you have another 500 units occupied in the summertime. It does change their lifestyle. If you live there year‑round, it could bug you. All of a sudden, the pool is full. And somebody parked in your one‑and‑only spot, yeah. There are a lot of issues that we, as the owners, have to take responsibility for, and recognize that we are impacting those people there who make that their home year‑round.

    Christine: As you’re talking about this, all I see, I mean, yes, there were negatives that happened, but I see a lot of positives. I bet you met a whole bunch of owners that you didn’t know before. I bet you now know a little bit more about each other.You’re probably friends with some of these people now. Is that true?

    Melinda: The positives are innumerable. Not only did I get to know some of my neighbors that lived there permanently better, I got to know board members who I can count as friends.
    I’ve gotten to know other rental owners who I can count as friends, one who has become a very close friend. At our HOA meeting back in February, we had a rental owner cocktail group before the meeting that night. Just to get together and give ourselves a pat on the back. To say, “Let’s keep this friendship going.” We even chuckled and said, “In 20 years, will we be the retirees living here, saying ‘those doggone rental owners’?”
    Christine: I hope not!
    Melinda: That’s what we said. But we laughed at ourselves and said, “Probably,” because the same things happen over and over again. But, it’s mostly good things that have happened.

    Christine: So, you got together. You guys talked. You communicated, you did mailings, all of that. Now, what happened when it came time to vote? Did you guys have a quorum? Did people show up? Did they send in their ballots?
    Melinda: Well, the first round of voting did not have a majority. We are an HOA where you only need 51% now, to change a CC&R. We did not have 51% one way or the other.

    The board then had the discretion to stop the vote, but they decided to go forward with it. I’m sure some of it was legally motivated, because they could have been sued by the other side, that they didn’t do due process. They continued through, to find out. In the meantime, remember that we had an ad‑hoc committee going now, working with the HOA.

    They sent out another ballot, and eventually, they had a deadline for that one, too. So they sent out a second ballot to people who had not yet voted. It came back, and it was a close margin that we won by. We called it the “Vote No on Three” measure. The signage restrictions passed, and the rental restrictions were voted down by a narrow margin, which is really good news, but it also sent a clear message to us that we couldn’t just sit back and put our feet up. I was just on the phone with our property manager for our HOA, or general manager, I think that’s what they call her. We do still have ongoing work, and we have made recommendations.
    Christine: Now looking back at this whole process it all turned out positive, the vote went in your favor, it really got you guys all together and got you communicating. There were a lot of positives that happened. Is there anything that you look back and say, “Maybe I shouldn’t have done that,” or “I could have done it differently?”

    Melinda: Two things. I would have gone to the annual HOA meeting each year — I had only been once. I think that I probably would have gone to an HOA board meeting and introduced myself and offered my services on any committees or if there were ever any issues. I think the best way to avoid it is to be involved, and that’s the hardest way.
    Christine: It’s also very important when you’re looking at your board and what votes are coming due, if in a circumstance especially like yours where you’ve got a small majority of the homeowners who actually rent and the other ones who might just use it partially or use it full time, I think it’s really important to at least have one board member who is a rental owner because we are part of the voice and I think that’s really, really important.

    When you are voting for your HOA you need to look at who these people are and what they do with regards to their homes. A lot of people tend to say, “I’m going to choose the person that lives there because they’re there and they’ve got more time and blah, blah, blah.” It’s not always the best choice for you. You need to look at somebody that’s going to represent you and your common interests.
    Melinda: It’s funny, Christine. I didn’t set you up to say that either, to set me up, I swear. We just had our election and we now have three new board members. Although none of them are vacation rental owners at this community, as a group we kept that e-mail loop going and we had what we called a “virtual candidates forum” because we didn’t have one for our HOA. We asked them questions that were pertinent both to their opinions on rentals and just their opinions on our community in general. It was very enlightening and it is something we’ve now asked our HOA to do in the future so that we can all make educated choices.
    Christine: You know it’s so funny because whenever there are votes in the HOA’s that I’m in I always call each individual candidate; I’ll speak with them candidly, I’ll ask them questions. They’re always amazed. They’re like, “Christine, do you realize you’re the only person that’s called me?” And I’m always amazed to find that out.

    Why wouldn’t you call somebody or e-mail them and contact them to find out what their agenda is? Why are they running for the board? What do they think that they’re going to do? There are people that run for their own agenda and you might be empowering them to do so by voting for them. Then there are others that truly have the vast majority in mind when they run. It’s just something that we all sort of get those ballots in the mail, we’re busy with other things in our lives, it’s not our primary residence, but these things make all the difference in the world.

    Well, Melinda, thank you so much for joining us and for giving us all this information. I think it will be great for other people to listen to your experiences and hopefully learn from you.

    Listen to the audio version of this podcast.

    © Copyright HomeAway, Inc. 2007
    Published: March 9, 2007

  5. fleurdesel9 permalink

    10 Ways to Defend Against Vacation Rental Bans in Your Area

    Vacation rental bans are when a municipality imposes a restriction against renting your property on a nightly, weekly, or even monthly basis. They often restrict any rentals on a transient basis, meaning anything less than a full residential lease of six months or more.

    State and local governments are not the only entities imposing vacation rental bans. Condominium complexes and homeowners’ associations (HOA) are also getting into the act. Below are 10 strategies for avoiding a rental ban that could destroy your business.

    1. Collect and pay sales tax.

    2. Be a good neighbor.

    3. Be active in your Homeowners Association.

    4. Stay on top of current events in your area by subscribing to the local paper or reading it
    online. Google Alerts are also useful.

    5. Know the zoning laws in your area.

    6. Make sure that you (and your renters) are following the local ordinances to a tee.
    Complaints from permanent residents about noise, trash, and parking issues are what
    usually get the ball rolling on rental bans.

    7. Screen your renters carefully.

    8. Band together with other vacation rental owners and property managers in your area.

    9. Educate yourself about what’s happened in other markets.

    10. Show your face by participating in area community activities when you’re in town.

    © Copyright Christine Karpinski, 2007
    Updated: September 22, 2009

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