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Posted By MelissaP1 on 07/02/2019 8:16 PM
Does the HOA own the homes? Lawyer told me that a HOA can not limit rentals because they do NOT own the homes. It is up to the mortgage company what you do with their property if you have a mortgage. Even if it's written in the HOA documents doesn't make it "legal". I know of no state that prevents anyone of renting out their home.
Numerous states have rental restrictions written into the CC&Rs, and many have been upheld in court. (According to my association's attorneys, the restrictions that have not been upheld have often been deemed to be vague and arbitrary, so the actual wording of the amendment is important.) It's legal because it's in the governing documents and because courts have recognized that homeowners in HOAs have a material interest in the actions of other members. If the restriction is there because of an amendment, then it was approved by the necessary majority of owners. Persons who buy in communities with a rental restriction have agreed to abide by this restriction, same as with all the other restrictions in the CC&Rs.
Can anyone *prevent* an owner from renting his home? No. Nor can anyone *prevent* an owner from violating any of the other restrictions that the person agreed to abide by. However, the HOA (in the person of the board of directors) can take legal steps to impose penalties on violators, same as with any other restriction.
And as Sheila noted, if your community doesn't have a rental restriction in place, the obvious thing to do is to enforce the restrictions that you have. It will reduce a lot of the problematic behavior that causes concern.
Personally I think the whole rental situation is a bit contradictory since it is a commercial use of residential property, often in areas that are zoned as strictly residential. Owning rental property is a business, especially in the case of the short-term, airbnb style "rentals" (which I say are not rentals at all, any more than a short hotel stay is a rental). Bona fide renters who have signed leases have different legal rights and responsibilities than folks who check into the Marriott or an airbnb for the weekend do. It sounds like at least some municipalities are starting to recognize this.