personal beefs played out in HOA

I'm hoping to get some guidance on how to address this situation. Last year's president, treasure and vice president who were husband, wife and besty) were asked to hold new elections as required by the bylaws (because they were doing whatever they wanted and people wanted them to start following bylaws). As soon as the new three took over (I was one of them) the past board membrs began complaining about everything from the pool being opened too late (we opened it on May 14) to not liking that we cleaned the pool ourselves (we did so to have it ready sooner after our pool guy left dead frogs in the filters) and so on. After many attempts to make them happy and other neighbors not wanting to get involved, the entire board resigned. The same loud complainers took over the board again and we thought it was done. However...

This board just slapped us with a violation letter claiming we cannot have airbnb guests or have a listing on airbnb. Some of the board have gone so far as to say we can not have ANY guests or we risk the last violation again. They state reasons that seem so crazy to me. They threaten to fine us for each of the following for every day we don't comply:

we are renting our home for less than the required lease length
(We don't rent. We live in our home and share our guest room with many friends, about 15% are airbnb paid guests. HOA says they get to define "rental" and we're renting.)
we are leasing our home without a lease agreement
(again, we aren't leasing. We never grant anyone possession of our home but they get to define it)
we are running a timeshare which is not allowed
(again, we never grant anyone possession of our home and certainly not repeatedly but they define timeshare differently)
we are running a business out of our home which is allowed if it is entirely indoors but since we have a hot tub, our guests could potentially use it which is outside.
(we aren't running a business according to the IRS, but the HOA board says they get to define what a business is)
we have become a nuisance because 1. neighbors don't like us having guests, 2. our guests drive on the neighborhood streets, 3. our guests could potentially tresspass

In addition, one of them claims "they heard" that our guest tresspassed on our neighbor's driveway and was taking pictures of children. This is a fabricated story that was later debunked. We witnessed the event take place and have the neighbor's true account in a prior recorded meeting. Our guest did walk a few feet up the neighbor's driveway to get a better angle of our home. He was stopped by the neighbor. No children were out. We immediately went over and apologized to her and at the time she said she was satisfied with our apology. However, her out-of-town husband later added the "children being photographed part" and now her friends sit on the HOA board and have encouraged her to claim he "may have taken pictures of children" because they will award her pain and suffering damages from us for the tresspassing event and related nuisance claims. The board has already said they will not accept the prior statements recorded and consider the account factual.

I talked with neighbors door-to-door bu most them want to stay uninvolved because they have been targets in the past. If the Grievance hearing is made up of the same people as the board, where do we go from here? Can an HOA redefine legal terms and arbitrarily decide what is a nuisance?

Sorry, forgot to reply to this part.

Too often, hearings before the Board are, as you point out, one sided. A conclusion has typically already been made and you are simply being given the opportunity to present your side of the issue.

If a compromise or mutual agreement can not be achieved in these hearings, the next option (for either side) would be the courts.

Since, as shown in my earlier post, one could conclude you are in violation, is to be polite, show a desire to comply with the governing documents as written, and work out a compromise. Otherwise, you could be facing monetary penalties, potential legal costs (if it escalates to the courts) or (worst case - if allowed in your State) a lien and potential foreclosure on your property if the monetary penalties are not paid.

Thank you for the frank and honest response. I see your point. Perhaps I will do what everyone else has done and move.

LarryB13, I've thought about an injunction considering this person also called the city and reported I was running business in a residential zone and when they didn't agree, she called the county and reported I was operating a business without a license. Not sure I want to pay an attorney if I don't have to.

I think the promise of damages is an empty one to keep the original neighbor backing the photgraphing accusation, but I could be surprised again. I didn't think walking on a driveway was trespassing either, unless a sign was posted. Anyway, my follow-up question is ...

What power does the board have in deermining a fine amount? No fines are established in the CC&R, just that they can assess some. Can they go crazy and fine me $1000?
Also, does it matter that the CC&R refers to the old subdivision name that was disolved after the developer was taken to court? The names are similar but not equal.

NOTE: I attached a portion of our CC&R (and made sure the subdivision isn't named) in case someone wants to look at it.

not according to my city, JohnC46. There is a section allowing "acceptable accessory use" of a primary residence.

did the attached file not come across in my previous post? I'll insert below:

Article VII 
 Homeowner Use Restrictions 

Section 1. Covenants Enforcement Committee. The use restrictions set forth in the following sections supplement other restrictions and requirements provided elsewhere in this Declaration. The Board’s designee for enforcing such restrictions and requirements shall be the Covenants Enforcement Committee.
Section 2. Business Use. All Residences shall be used for singleifamily residential purposes. However, a portion of a home can be utilized for business purposes provided the business: 

a) is conducted entirely indoors and is not obvious externally, b) does not otherwise violate the provisions of the Declaration or Bylaws
c) does not create noise or other disturbances, and 
d) does not unduly increase traffic flow or parking congestion.
Community wide garage sales scheduled and regulated by the Association are not deemed a business herein. 
 


Section 3. Leasing.
Leasing of a residence for residential purposes is allowed provided the Owner delivers the Board a copy of the lease and provided such lease:
a) has a minimum term of six months 

b) acknowledges that the tenant has received a copy of the Declaration, Bylaws, 
and possibly other documents, 

c) obligates the tenant to comply with the foregoing documents, and 

d) provides that, in the event of noncompliance, the Board, in addition to any 
other remedies, may evict the tenant on behalf of the Owner and assess all 
costs associated therewith against the Owner and the Owner’s property. 


Section 4. Timesharing.
Timesharing shall be prohibited in the Community. The term “timesharing” shall include, without limitation hereby, timeshare estate, timeshare use, and timeshare interval programs. 
 


Section 5. Nuisance.
It shall be the responsibility of each Owner and Occupant to prevent the development of any unclean, unhealthy, unsightly or unkempt condition on his or her property. No property within the Community shall be used, in whole or in part, for the storage of any property or thing that will cause such Residence to appear to be in an unclean or untidy condition or that will be obnoxious to the eye; nor shall any substance, thing, or material be kept that will emit foul or obnoxious odors or that will cause any noise or other condition that will or might disturb the peace, quite, safety, comfort, or serenity of the occupants of surrounding property. No noxious or offensive activity shall be carried on within the Community, nor shall anything be done tending to cause embarrassment, discomfort, annoyance, or nuisance to any person using property within the Community. There shall not be maintained any plants, animals, device, or thing of any sort whose activities or existence in any way is noxious, dangerous, unsightly, unpleasant, or of a nature as may diminish or destroy the enjoyment of the Community. Without limiting the generality of the foregoing, no speaker, horn, whistle, siren, bell, amplifier or other sound device, except such devices as may be used exclusively for security purposes, shall be located, installed or maintained upon the exterior of any residence unless required by law.




Airbnb will violate almost all CCRs in the U.S.

If you want to capitalize on the "success" of Airbnb, then purchase property OUTSIDE an HOA.

Kathi,

It seems to me that your HOA Board is grasping at every straw possible to try and prevent you from renting on airbnb. It is my opinion that airbnb-type business doesn't belong in a HOA, but presently for you, as long as you're not violating any of your documents, then there's not much anyone can say.

Your Board is aware that your docs don't exactly forbid what you do which is why there coming at you from every possible angle. What they should be doing is working on changing your HOA's documents and gaining support for that change to specifically forbid what you are doing.

If what you posted is all your docs say about leasing/renting, then your airbnb rentals are just that . . . rentals, not leases. Since it's not a lease, you aren't in violation of the "Leasing" section. Also, the 6-month "Rental Agreement" they are demanding is not a requirement per your docs . . . again since you aren't leasing. But you most definitely are renting regardless of what you want to call it.

The "Business Use" issue is definitely a little more gray and open to interpretation. It's clear to me that the part about being "conducted entirely indoors and is not obvious externally" is being taken out of context and applied to your situation. That phrase is trying to prevent things like an auto fix-it shop being run out of your garage or something else clearly and continuously visible from the exterior of your home. The Business Use section also obviously permits customers to come and go as long as it "does not unduly increase traffic flow or parking congestion". Ask the Board how any business with customers will be permitted if those customers cannot "step outside of the home".

I suggest submitting a request for a 6' privacy fence for your back yard (as long as your docs permit that). Then nobody will know what's going on in your back yard unless they are invading your privacy and that of your guests.

Again, I don't condone what you are doing and I don't think it belongs in a HOA. However, I'm also against overreaching and overbearing Boards, especially when they try to enforce things that are outside of their control.

I hate spelling errors I can't change. sorry all.

AirBnB is becoming a hotly debated subject and the heat will only increase. In SC, the Hotel/Restaurant Trade Association (I forget the actual name) wants it classified, registered, and taxed as hotels/motels are. There are several lawsuits going on in NYC over the issue.

To me, when one rents a room out then it is a business.

arguement = argument (where is the spellcheck?!!)

Seems that AirBnB acknowledges what it is.

Link to locations where AirBnB collects and remits hotel taxes to the taxing authorities:

https://www.airbnb.com/help/article/653/in-what-areas-is-occupancy-tax-collection-and-remittance-by-airbnb-available

I see it more in alignment with ND, Kathi.

Your CC&Rs require a 6-mo. lease to lease out your residence. There is no wording I can see that forbids renting out rooms. That wording IS in our CC&Rs and forbids us to rent out a "portion" of our condos. We do not enforce that covenant. Nor do we define renting out at a room as a "business."

But since you're not leasing out your entire home, how can the Board grant you an exception. I don't see a violation of your covenants. But I'm not in the legal progression so you may want a legal opinion.

In our county, too, airb&b-type rentals are being hotly debated. Everywhere that I've read about does seem to require that you pay something like hotel occupancy taxes.

While this is in California, this may help, http://www.davis-stirling.com/MainIndex/ShortTermRentals/tabid/1836/Default.aspx#axzz3WNNhJ9Z8

This is against the CCRs, it is renting or leasing (same thing) less than the whole of the house and it is transient or hotel renting. There is money to be made, but not in an HOA setting.

Sorry, it doesn't fly.

Follow-up to my previous post . . . My initial comments on renting vs. leasing may not be entirely accurate. Sources vary on interpretation of each . . . some in your favor, some not in your favor. So I'd suggest seeking professional/legal input in that regard.

Your "business" model is intriguing though . . .

Ouch, JonD1!. I thought you would give me more credit than that. I file taxes on any taxable income earned. I don't designate any rooms to Airbnb (our bedrooms are used constantly not only for friends and family, but is my husband's hunting room and my lounging room. Note this article: http://www.nolo.com/legal-encyclopedia/tax-issues-when-renting-your-home-airbnb-vrbo.html

I'm also going to make a slight correction to your statement that our CC&R don't permit rentals. As ND pointed out (thanks ND!) the CC&R only addresses leases. The legal different between a lease and a rental is that a lease agreement is binding and cannot be changed in any way until the time the lease expires. I allow my guests to cancel a booked stay and make any changes they like up to the day they check in. If they want to stay longer or leave earlier, I allow that and adjust the price accordingly.

I hope for the OP's sake the income provided by the 15% of paying guests covers the fines and legal costs that might incurred.

And going forward I would hesitate to proceed based on the legal opinions offered here. Best to consult a lawyer at $200 per hour to sift through the documents and case law and hope your interpretation of lease versus rent holds up.

My guess the cost to litigate this will exceed the annual income from the rentals.

I have to wonder how many guests constitutes 15% of the total number?

How many people do we have visiting? To make this worthwhile and worth fighting just how much income is being produced?

My opinion the OP is on shaky ground. Best to have a lawyer explain the risks, costs, and consequences going forward.

It seems to me, Richard, that Kathi's board is on shaky ground based on the CC&Rs she showed us. Just because "leasing" the house for a minimum of 6 months is stated, the doc says nothing either way about renting a portion of a home. I don't think you, I or her board can enforce covenants that aren't there. And I've written at least twice now that an attorney's advice seems warranted.

Of course, I wouldn't want short term rentals in our high rise, but Our CC&Rs don't give us room to limit the terms to more than 30 days. And owners do try it and probably succeed some of the time. How are we supposed to know who their "cousins" are, or if they're renting their condo out for a long weekend, while they're away? Our fine is $1,000 and can double with repeat violations.

But just because I don't want them here doesn't mean that I must say that, based on her docs, that Kathi can't have short-termers at her HOA.

KerryL1 - We have a driveway large enough to hold 7 cars. We don't park guests on the street (although everyone else does). I will pay the fines if they are assessed, so I can avoid penalties when/if I take legal action. Richard's attitude isn't unlike my HOA's board in that they feel they can interpret LEASE to mean whatever they think it means. This is part of my frustration. If I believed I was indeed leasing and the covenants forbid it, I would stop (and look for a new neighborhood). My HOA wants me to be in the wrong and they probably believe they are interpretting all the violations as they are entitled. That's the frustration.

JonD1 - It's not about the money for me, Jon. I'm going to fight this because a few bullies have degraded the neighborhood. I didn't know the history until I started walking around our neighborhood and heard the sad stories. a few people have been really aweful and the rest are too afraid to speak up. I'm planning to rally neighbors at the next meeting to dive into what it will take to get back to being nice again. We had a taste of it 6 months ago and he neighborhood lit up with holiday parties, bunko night, connecting on Facebook, and a regular newsletter ... then all the $h!t started up with complaints about the pool, Airbnb, and everything went downhill again with 10% of the homes getting listed for sale to get out.

RichardP13 - Security code for what (I'm confused)? I open my own front door for guests. I live in a home, not an apartment building.

Kathi, here is the problem with your stance (one of many). Let's say you want to make the "bullies" pay. Or stop them from being "bullies". Whatever. The board fines you. You pay the fine. They increase the fine. You still pay. Then you file a lawsuit. You do realize that any lawsuit brought against the HOA is a suit against yourself? You can not sue the bullies individually because they are covered by an insurance policy (D & O policy; covers directors and officers of the board) that activates upon the filing. Fast forward to the settlement. Even if you win, the D&O policy will eventually have to renewed. What are the chances the policy premiums go up? Uh, about 100%. Who pays for that increased policy cost? That's right, the entire association. That means you. You may think you are being seriously wronged (and you may be). However, you have to realize that in the end, the bullies are still going to be there (unless they are replaced, recalled or die off). If they are still on the board, they are going to be even more of a bully because they are going to be pisssed off.

Your best course of action is to take a hiatus from your business. In the meantime, garner support among the neighbors to work against the current board. Run for a position. Have them run for a position. Outplay them by taking away their support. It may take a little time but trust me, you can be successful.

Or you can take my original suggestion a few days ago and move. Whatever you do, good luck. I know how frustrating the situation must be.

I have no contract with my guests. They are free to cancel plans at any time, even in the middle of a stay. If I have no contract, how can someone say I have a lease (contract) agreement?

BUT ... a lease CANNOT be changed. A lease is a binding agreement for the duration of the contract -- it can only be completed or renewed. Interestingly, when I google the legal difference between a lease and rental, a rental contract automatically renews as well, until the contract is terminated. My guests clearly cannot decide to stay another day I they decide to. They also cannot "take possession of anything." If they book and I cancel their reservation the day before they arrive, they have no real recourse. I get a "bad host" ding on my profile but I'm not obligated to put them up. I only have to refund the money.

I don't deny I have some type of agreement/contract with my guests, but because I don't rent out my "whole house" as is one of the options I never have a need to evict anyone. They have no legal rights to occupancy.

A lease CAN be changed, UPON content from BOTH parties.

Kathi

I will give you a free opinion.

If the HOA decides to pursue this legally, you WILL lose. While Airbnb is a great thing, it won't pass mustard in an HOA environment with its restrictive covenants.

I have had to deal with a case such as your, but in a condo, and well, the outcome was not pretty.

If you feel you're right, it's your dime.

Seems Kathi is hell bent on holding her view of what in fact constitutes a lease or not. Then we go into the debate of lease versus rental.
Some folks can only hear their own words and views.

Anyway you slice this Kathi is engaged in a money making venture that the board has determined violates their documents.
Kathi seems to believe she can talk her way out of this with her own interpretations of what is permitted under her documents.

In my opinion her rationalization sand justifications will not serve her well if this should go to court. It will not be as she sees things that matters.

And if this is her attempt to right her percieved wrongs of others than it has become personal a level she suggested not to favor.

My advice, find a lawyer and listen to their advice and stop convincing yourself your interpretations and views decide how things are to be.

That's an expensive and costly road when you can only hear your own views. And the other parties are determined to prove you wrong.

Lawyers live for this.