vacation rentals in a residential gated community

Marsha,

I don't believe you can prevent a property owner from renting out his home unless your gov. docs. specifically state "no renters". Renters are no different than members with regard to liability issues. The property owner is responsible for any violations committed by his renters. With regard to your remark: "Since we are a gated community with common areas, the idea is to keep out the general public" -- someone living in your community as a renter should not be thought of as the "general public". That renter is a resident just like you, except that you own your home and he/she rents his.

i tend to agree with Marsha.. if the contract said "no businesses" which it seems to say, then running a boarding house/bed breakfast or weekend rental cabin seems to be a business. There is a major difference between renting to someone for a year, and renting to 52 different people in a year... the gate code, insurance, etc. all seem very feasible fears in that case.

to me, the bottom line is the rule says "no commerical" enterprises, and renting a home by the day, week, etc. seems pretty commercial to me.

Your legal contract is with the owner. Your recourse is with the owner. The owner is responsible for tenants abiding by the CC&Rs. Your CC&Rs give you the legal ammunition to use if the owner and/or his tenants do not abide.
In any event, I find it difficult to believe, if you are indeed not a "destination" vacation area, how successful this owner will be with short term rentals. What would be the attraction? You could be working yourself up over problems that might not happen.

Marsha in addition to the time restriction for rentals and besides enforcing against the homeowner which is an absolute must because they are ultimately responsible for their tenants actions I would suggest the BOD with the help of an attorney draft a rider that all H/O's must include in their leases going forward. Some things I would seek to add if allowed under your state's Landlord/Tenant laws.

1. The right to initiate an eviction action against problem tenants with the legal costs being assessed against the H/O.

2. That the tenant must provide contact information for everyone living in the unit.

3. Something to the effect of if the homeowner becomes delinquent with their assessments then the Association can collect them and any past due amounts directly from the tenant and the owner must credit the money paid by the tenant as rent. In other words if your monthly assessment is $150.00 and the H/O is delinquent and the BOD collects the $150.00 from the tenant directly then when the tenant sends the owner his rent minus the $150.00 the owner must credit it as if the tenant paid him in full.

4. I would also include language that if you have amenities (pool, tennis court etc.) the owner either assigns the amenity to the tenant and cannot use it for the term of the rental or keeps it for their self and the tenant can't use them.

just to play devil's advocate, you do not believe that renting an item to another person for a period of use is commerce? You do not believe that renting things is a business? Hotels, resorts, beds/breakfasts are not in a business/commerce? people who rent homes do not consider them a business? a rental cabin on the lake, with nightly rates, is not a commercial endeavor?

the IRS would love to speak to you about your definitions. They consider the rental (or sale) of an item or service to be a business/commercial transaction. State tax agencies do to, and require taxes be paid (often times).

Or, to stretch the analogy past the breaking point, if your spouse declared she was a single man kind of girl, but she rented herself out to strangers nightly, is she still faithful?

I kind of agree Harold... renting is a business. the difference in SOME cases is that some HOA's say that you "cannot run a business from your home"... and the people IN the home are not running the business, and the owners of the home are not running a business IN THAT HOME (the business is run elsewhere). It's weak arguement, but i always wondered why HOA's with "no business" rules did allow renting.

Perhaps the difference is that renting for long periods is somehow different: overnight guests, weekend guests require extra traffic, that the fridge be restocked, dishes cleaned, laundry done, etc. between guests, which is more like running a business IN the home.

Honestly, i don't know... i am kind of tossing ideas here and hoping one of them sticks... It does raise an interesting question for an HOA... if I live in an HOA with a pool, spa, tennis court, etc., can I rent out my use of those amenities? Can i charge strangers $10 and let them swim in the HOA pool?

We recently attended a seminar and short term rental of residential was addressed. VA Supreme Court Case 2007..Scott vs. Walker interpreted a covenant restricting the use of the lots in Harbor Village Subdivision in Bedford County..the court decided that the phrase residential use is ambiguous as to whether it requires an intention to be physically present in a home for more than a transient stay and as to whether the focus should be on the type of use of the property by the owner and the renter. Moreover, the court added, if there was a duration of use component to the phrase residential use it is ambiguous as to when rental of the property moves from short-term to long-term.

Hope this helps,
MaryN