Unauthorized Leasing in HOA

You should probably run this past the association's attorney for their thoughts on it. When we were working on amending our rental restriction, our lawyer recommended against capping the number of rentals at a particular number. It's too hard to enforce, and a number of courts have shot down similar restrictions as arbitrary.

(FWIW, I agree that such a cap is arbitrary. Some people can lease their homes, others can't. Joe Shmoe decides to lease his home, you're under the cap, no problem. Fred Flintstone decides to lease his, you're now over the cap thanks to Joe, Fred can't lease his. If Fred had asked before Joe, then Fred would be golden and Joe would be SOL. I personally have a problem when owners have different rights, although some others on this website don't have the same concerns that I do.)

As for what you can do, you're going to be limited to provisions in your governing docs. There is a window of opportunity for reining in the number of rentals - once you get too many landlords, you won't have enough votes to tighten any restrictions. Some state laws also make it difficult for HOAs to limit rental numbers - if you don't have such a restriction now, you may not be able to create a new one.

If you can do nothing else, I strongly recommend prohibiting hotel-style airbnb's and others of that ilk. You may have some leverage if your governing docs have language prohibiting businesses or other commercial use of the property. Some courts have held that airbnb's are clearly commercial use since the people staying in them are not living in the homes in any sense of term and (to the best of my knowledge) airbnb's are not regulated by a state's landlord-tenant laws but may be regulated by the area's zoning or lodging laws.

But we're getting into the legal weeds here, and whatever the board does is likely to generate push back - which is why I say talk to the lawyer to find the limits on what you can and can't do.

Good luck. I tell people all the time the HOA does NOT own the property. They are a 3rd party to lease agreements. It would be very tough to enforce any rental approvals even if written in your documentation. Califorinia is the only state I know of that has any kind of rental limitation agreements. Even that is very limited and new. Most places are grandfathered in with previous laws.

The best option for your HOA isn't to restrict rentals. It is to make sure owners put in their lease agreements their tenants must follow the rules of the HOA. This will allow the owner to evict the tenant if they violate any rules. The owner is the one responsible for paying dues and fines NOT the renter. Plus renters have "Tenant rights". Meaning if it's not in their lease agreement can't necessarily evict for an HOA violation. A renter can stop paying rent upwards to a year in certain conditions so the owner is powerless to evict. The HOA can't supercede "tenants rights" either.

I expect that your CC&Rs have a passage along the lines of:

The Association or any Owner shall have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens and charges now or hereafter imposed by the provisions of this Declaration. Failure by the Association or by any Owner to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter.

With that expectation, enforcement would be through the courts.
The first step would be a cease and desist letter from your attorney.

In North Carolina we had our attorney review our CCR's in regards to AirBnB's. They advised that we could proceed with our violation process under hotels are prohibited. Violations and hearings are about the only means an HOA has for remedy.