Q: Our CC&Rs state that a rental must be at least 30 days. We have recently found several (web-based short-term) rentals in our complex that are just day to day rentals. I wrote to the Internet company and they replied that they would not take any action. How can they not take some responsibility for making sure the owners of the places they rent out are not illegal? — R.F., Orange
A: Your HOA should enforce its CC&Rs. The Internet company is happy to make money on short-term rentals, regardless of whether they are allowed. Many cities have zoning laws limiting short-term rentals, which are considered a nonresidential commercial use, so the city might take enforcement action.
Most likely, your CC&Rs also declare the property to be dedicated to residential use. Your association may want to consider adopting a written rule banning such rentals or advertising short-term rentals and including a fine for advertising or renting in an amount that outweighs much of the financial benefit of the rental.
Q: Almost half of the units in my building are short-term vacation rentals. This results in increased wear and tear on the building. Can we impose a modest “facilities fee” on such rentals to help us maintain the building? If not, is there some other legal way to collect fees from rentals to compensate for the additional expense of maintaining the building? — J.S., Pacific Beach
A: If the association can create a reasonable but rough calculation of the cost imposed upon the association by a short-term tenant, the 2015 appellate case of Watts v. Oak Shores supports the notion that an HOA can impose a fee for short-term rentals. That is, so long as the HOA can show a good-faith estimate of the costs which are being covered by the fee.
The calculation does not have to be exact but should be supported by some reasonable information. Ask the manager and perhaps the HOA’s certified public accountant can do a rough estimate of that cost and then impose a fee based on that cost.
Q: During my many years in my HOA, the CCRs have always required 30-day minimum rentals. Now the HOA wants to raise it to one year. Can they do that? — J.B., San Francisco
A: If the members of your HOA vote to amend the CC&Rs to establish a longer minimum initial rental term (one year instead of 30 days), then that would be the new minimum. The CC&Rs are a covenant and a form of contract binding all the owners in the association. By amending the CC&Rs, your community has agreed to tighten up its rental limitations.
If Assembly Bill 3182, authored by Assemblyman Phil Ting of San Francisco, were to become law, the ability of HOAs to make decisions about rentals will be reduced (more on that next week).
One would think that HOA communities could make their own decisions about how to operate their properties, but the Legislature repeatedly intervenes. Since most legislators are not active (or even residents) in HOAs, it is perplexing that they think they know what you all want and need.
Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to Kelly@rodllp.com.
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HOA Homefront: Can short-term rentals pay for property wear and tear? - OCRegister
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