Tourists from all over the world are drawn to Central Florida due to our world class attractions and theme parks. While tourism drives the economy, locals know to avoid International Drive in Orlando or basically anywhere near the many hotels and resorts catering to out-of-towners. But with the advent of online third-party rental sites, such as Airbnb, some local communities are becoming beacons for tourists, and with tourists comes increased traffic and higher probability of noise complaints.

While condominiums usually have some sort of restrictions regarding rentals, or even a rent approval process, homeowners associations’ governing documents are often silent as to rentals, even short-term rentals. Some homeowners associations might consider adopting an amendment to their restrictions in order to give them some level of control over renters, but that threshold may be extremely difficult to reach. Instead, we often rely on clauses in the restriction that limit use of properties solely for “residential purposes” as a means to prevent owners from using sites like Airbnb to rent their homes.

A typical declaration for a homeowners association will have a clause that generally states, “No Lot shall be used except for residential purposes.” Attorneys on behalf of homeowners associations have argued that short term rental of homes through Airbnb does not constitute a “residential purpose,” rather, it is profit-driven and commercial.

“[T]he critical issue is whether the renters are using the property for ordinary living purposes such as sleeping and eating, not the duration of the rental.”

 

Unfortunately, a Florida court has ruled against that argument when a homeowners association sought to enjoin a homeowner advertising his home as a “vacation rental” Santa Monica Beach Property Owners Ass’n, Inc. v. Acord, 2017 WL 1534769 (Fla. 1st DCA 2017). The homeowner argued that the short-term vacation rentals were residential uses—and not business uses—because the renters were using the properties for residential purposes. The court looked to decisions in other jurisdictions which held that in determining whether short-term vacation rentals are residential uses of the property, the critical issue is whether the renters are using the property for ordinary living purposes such as sleeping and eating, not the duration of the rental. Because the association could not argue that the home was being used for nonresidential purpose, the association’s action was dismissed.

Therefore, if you live in a homeowners association, and you have no explicit restrictions on rentals, what can you do? You can no longer rely on the “residential purposes” restriction, unless you can show that the renters, not just the owners, are not eating and sleeping in the property. While it’s a daunting task, your only recourse may be to attempt garnering support for an amendment. Either way, contact our office to determine what rights you may have if this is becoming an issue for your community.

Challenging Airbnb Rentals as a Homeowners Association

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