The legal landscape involving rental restrictions on vacation rentals throughout the United States continues to evolve depending on the state and locality. There have been dramatic legislative changes in large cities, such as Chicago and New York City. In addition, some resort cities have increased their use of legislation to impose rental restrictions. One bright spot in this evolution has been recent case law and specific legislation in Florida prohibiting imposition of rental restrictions.

The following is a brief synopsis of recent impositions of rental restrictions, HOA and COA developments, and case law supportive of each.

The key cases prohibiting rental restrictions in Florida are:

1. Rollison v. City of Key West, 875 So.2d 659 (Fla. 3d DCA 2004); and
2. Milo, et al. v. City of Venice, Sarasota County Case No. 2008 CA 552 SC (Order for Petition on Writ of Certiorari dated 03-14-08).

Recent cases have a bearing on short term rentals in both the legislative and HOA and COA context:

• A. Altier, et al. v. City of Venice, Sarasota County Case No.: 2011 CA 000760 NC (lawsuit brought against the City of Venice for its attempts to prohibit vacation rentals for deprivation of civil rights under 42 U.S.C. §1983, violation of substantive due process rights under the Florida constitution, declaratory relief under Fla. Statute §86.011, et seq. The Judge determined that the City of Venice had taken property rights without compensation. The case is now on appeal by the City of Venice.);
• B. Town of Jupiter Inlet Colony v. Bondar (unreported circuit court opinion in the Circuit Court for the 15th Judicial Circuit of Palm Beach County) (Granting property owners’ right to rent on short term basis and denying City’s Motion to limit rentals.); and
• C. Cape May Harbor Village and Yacht Club Association, Inc. v. Sbraga, et al., 421 N.J. Super. 56 (2011) (restriction on alienation in condominium setting was allowed because of contractual agreement); see also authority of COA to impose other type of restrictions: Alga Hills Homeowners Association v. Gallagher, 2010 Cal. App. Unpub. LEXIS 5972 (2010). See also Homeowners Assoc., Inc. v. McGlothin, 885 N.E. 1274 (2008).

In New York, a bill was recently introduced by New York State Senator Martin J. Golden to amend last year’s short term rental ban that primarily affected rentals in New York City. Senator Golden voted against S68730-B/ A1008-B (also known as the “illegal hotel” bill) in June 2010. The illegal hotel legislation has yet to be implemented because the rental ban was too broad.
Florida has enacted House Bill 883 signed into law by Florida Governor Scott. The legislation prohibited counties and cities from imposing rental restrictions on vacation rentals unless they had previously enacted laws.

The legal issues involved in short term rentals are:

1. Constitutional issues;
2. Disparate Treatment;
3. Alienation of real property;
4. Reasonable regulations;
5. Contractual obligations;
6. Frequency of usage (hotel vs. residential);
7. Practical considerations regarding amending community development regulations and ordinances; and
8. Lawsuit and cooperation

CONCLUSION

Rental restrictions can cause managers and owners alike to suffer substantial losses in their investment of vacation properties. Whether the issue is unconstitutional takings or unlawful imposition of restrictions by governmental bodies or HOA or COA Boards, vigil is absolutely necessary to protect your investment.

In the City of Miami, Florida, Flava Works, Inc. and Angel Barrios brought a lawsuit against the City of Miami for violation of their rights to operate an adult entertainment business out of a residence. The City claimed that the company violated a zoning ordinance. On January 27, 2009, the Court found that Flava Works, Inc. was not operating as a business or adult entertainment establishment. The City appealed. On appeal, the Court found that Flava Works, Inc. was a business. The case was further remanded to address the constitutional challenge of an ordinance which prohibited business activities in residential zones. The Court held that it “may not invalidate an otherwise valid ordinance simply because it might possibly affect one particular type of business that would not create the kinds of problems the City intends to avoid…” The Court also noted that the ordinance was not overbroad because it did not exclude all businesses from the City – the businesses could operate in another part of the City. Flava Works, Inc., et al. v. City of Miami, Florida, 2011 U.S. Dist. LEXIS 86254 (S.D. of Fla. 2011). See also Flava Works, Inc., et al. v. City of Miami, Florida, 595 F.Supp. 2d 1341 (S.D. of Fla. 2009)

Please see the attached Executive Order 10-169, authorizing property appraisers to provide interim assessments of properties affected by the Deepwater Horizon oil spill disaster. Property appraisers in the 26 counties under the current state of emergency are granted authorization to provide an interim assessment of any property that may have declined in value due to the oil spill. Property owners can then use the interim assessments to substantiate claims against BP or other responsible parties.

View Document (pdf)

Originally posted on BP Oil Spill Damages.

It is easy to comment on Florida vacation rental restrictions – they are neither uniform nor consistent. The entire spectrum of the legislative landscape in the cities and sixty-seven Florida counties confirms the inconsistencies. Most cities have developed their own separate policies regarding regulating or banning short term rentals of single family residences. Some examples illustrate this point. Key West bans short term rental unless the property owner either has a scarce transient license or the property is located in Truman Annex with an amortized license. Miami Beach prohibits rentals that are less than six months and prohibits them from being rented twice in a calendar year.

The Village of Islamorada adopted an Ordinance that limited the total number of vacation rental licenses to 331, and provided for the ending of some rentals located in residential neighborhoods.

The City of Venice sought to regulate short term rentals by initially holding public workshops and hearings in order to obtain public feedback on regulating the rentals; and then without any hearing, adopted a rental ban. The Planning Director gave an interpretation that the rental of single family residences was a commercial activity that violated the zoning code. Fortunately, neither the Planning Commission nor the Circuit Court agreed with that interpretation.

As a result, the City of Venice paid $300,000 in legal fees to the challenged ban in addition to their hundreds of thousands of dollars in fees to their outside counsel.

The City of Venice then adopted a new short term rental ordinance whose key provisions included preventing resort dwelling activities in single family neighborhoods.
The City of Wilton Manors (near Ft. Lauderdale) sought to use code enforcement to limit the rentals of single family residences on a short term basis. The city’s appointed hearing officer ruled against the City and in favor of the property owners after conducting an evidentiary hearing. Essentially, the hearing officer ruled that the City failed to prove its case for enforcement.

The City of St. Augustine Beach initially considered a ban after one year on short term rentals, but later capitulated. This change of heart was due to threat of litigation with mediation involving some of the private property owners; editorials in the St. Augustine Record; and a large turnout of the public at commission hearings.

Unfortunately, these local governments seem to have forgotten that most of the real property rights we have today began centuries ago where battles raged over the taking of property by the Crown. The bundle of rights metaphorically and practically referred to as a bundle of sticks included transfer, sale, lease, bequeath, assign, mortgage, rent, and myriad variations of the ownership of private property. In order to transfer the property a Seller would transfer the bundle of sticks to the Buyer. The recipient Buyer would receive the entire bundle; not just one or two of the sticks. This transfer of sticks meant the Buyer received all of the rights that went with the purchase.

During the past few years the reasons given by people who opposed short term rentals have been numerous. The list is a long one and you can certainly add the reasons you heard (since there are plenty of reasons to go around). The most common reasons given by opponents of short term rentals are: too much noise; parking on my property; leaving garbage out so the dogs will get it; undesirables; causing property values to drop; not paying their fair share of taxes; not being neighborly; not supporting the community with volunteering; not a voter and no stake in the community; keeping lights on late that keep neighbors awake; using the pool late at night and making noise at the pool; having too many people on the property including guests; allowing too many people living on the property during the rental period; operating a hotel or motel with so many different people; and operating a business in a residential neighborhood. These are just a few of the typical complaints.

The second real reason these old-timers oppose short term rentals of single family residences originates from competing interests who simply oppose more competition. These competing interests may include the nearby hotel/motel as well as those interests who do not directly economically benefit from short term vacation renters such as local charities. The rhetoric of the opposition is magnified when the complaining party is either a local current or former politician or one of the owners of the hotel/motel. These interests have significant support with the actual voters of the community. They also recognize that owners of vacation rental homes are usually persons who permanently reside somewhere else and are not registered to vote in local elections and do not contribute financially to the campaigns.

Sometimes neighborhood associations also get involved in support of the old-timers and competing interests because the neighborhood association is composed of these old-timers who moved to the neighborhood to avoid the traffic, noise and other complaints.

Groups who oppose short term vacation rentals in single family neighborhoods are aided in their opposition efforts by support from the local elected officials and other prominent persons who do not want “transients” in their community. As a result, the battle to fight the restrictions becomes difficult and often times expensive. This entails fighting the enactment of the legislation and often time challenging the ordinances or city action in court. The Village of Islamorada’s discussion of short term vacation rentals is typical of the issues concerning imposition of restrictions:

Mayor Gregg commented that the community is spilt on this issue and suggested to everyone to compromise in order keep a balance on this issue. He further commented that he feels what may be good in one area will not be good in another area such as residential areas in Venetian Shores, Port Antigua, and the north end of Plantation Key. He explained that a large estate that has privacy would be a good area for a vacation rental.

Councilman Sante said that his concerns are someone buying in a medium residential area and making the home a short term rental because he feels there is a shortage of affordable housing in the Village already and short term rentals could force out the local residents.

Councilman Sante explained that he would like to consider the following items: a grandfather in date for those who have complied with the regulations, a cap on short term rentals (i.e. renting only twice a month), to have the agent/owner who is renting the property advise the neighbors that the property is a rental and have them sign an approval as well as give them telephone numbers where they could be reached in case there is a problem, to have a ruling by a homeowner association for vacation rentals being allowed in their area if there is an association, to have a stricter noise ordinance, to have all vacation rentals licensed, to have a police fee if there is a problem, to have an overlay of the zoning map, to have the ordinance stipulate the number of renters allowed per square feet of the unit, and to have a four hour rule to evict renters who have caused a problem.

Vice Mayor Forster explained that each neighborhood should make a decision whether to have vacation rentals or not. He further suggested that the agent must be no further than one hour away when renting in case there is a problem and the agent needs to return to fix the problem.

The task and expense of winning these battles against unfair regulation and restrictions are not supported by those who are affected by the same restrictions. The reason for this lack of support is due to one thing: lethargy. Lethargy generally follows the pattern of “let the other homeowner/manager carry the fight and we will piggy-back their efforts without becoming active ourselves.” One of the reasons people do not get involved is because of cost and expense of joining the fight. Secondly, they are concerned that if they do become involved, they will become the target of the opponents of short term rentals and the local government. Unfortunately, without a concerted effort, the regulations limiting or prohibiting vacation rentals once passed become embedded in the laws of the community.

Currently, groups like Florida Vacation Rental Managers Association have engaged lobby support to prevent harmful legislation. Before the Florida legislature this year was legislation to exempt single family residences from sprinkler system requirements.7 This change was organized by the Florida Vacation Rental Managers Association. However, many cities use their police powers to prevent short term rentals.

We have fought in the past and continue to challenge the basis for invoking the police power of the city. The challenge relates to whether the police power was properly exercised and, if so, the reasonableness of the compensation. These are just some of the challenges to regulations which limit or curtail short term rentals. Many times the owner is encouraged to comply with Florida’s Bert J. Harris, Jr., Private Property Rights Protection Act, known as the “Bert Harris Act,”8 or fight for a reasonable amortization if the legislation purports to be a total or partial ban. In these cases, both the vacation rental manager and the owner may have separate rights that are abridged under both the equal protection clauses of state and federal constitutions. It is in this litigation arena that things can be even more complex.

In the litigation arena some of the key questions that determine the rights you have are: did you have “reasonable investment backed expectations” when you purchased the property? Or, did you just decide to rent now because of the housing downturn? Are you prepared to pay the expenses in proving these reasonable investment backed expectations, including use of appraisers and economists? These and other questions make the task seem formidable.

Sometimes you may win at the local level and wonder that since you won the battle with the local government, is it over and can you proceed without any other cares or concerns except enjoying the fruits of your labor? Unfortunately, the answer is “probably no.” The economic landscape has changed so much that communities who lose round one often enact new ordinances to prevent future vacation rentals. They often claim these rentals are unsuitable in residential neighborhoods because they are of a commercial nature. The city’s argument is based on the aesthetics of a full time residential community. What steps do local governments take to make it more difficult to rent even when the legislation has ended?

Local governments sometimes seek to increase the costs of renting single family residences on a short term basis by enforcing ordinances related to safety. The enforcement is based on the protecting the public from fire or other hazards under the life safety codes. For example, currently there are rulings (Declaratory Statements) by the Florida Fire Marshal that affect the short term rentals.9 These administrative rulings can have a significant economic impact on the cost of renting your vacation home. Recently, a favorable ruling for lawful preexisting short term rentals was issued by the State Fire Marshal in response to an inquiry from the Fire Chief in Venice. 10
Another type of governmental restriction is one that limits renters of a property solely to those who are blood related family members. This means that a vacation property cannot have two different families sharing the rental even if there are sufficient bedrooms for everyone. The primary thrust of this restriction has been to limit college students, spring breakers, and others from renting properties in beach towns throughout the United States. Although there have been significant in-roads to defeating that type of regulation, it nevertheless still abounds in many communities.

Ms. Hackett has been closely following the short term rental issue in Venice, Florida. Additionally a short note of appreciation to Fire Chief John Reed of the City of Venice who has been steadfast in his enforcement of Life Safety issues while understanding the issues facing the vacation rental owner in Venice.

These associations seek to ban short term rentals by claiming that those rentals are commercial activities inconsistent with residential purposes. Again, the courts have generally sided with the owner of the rental property by disagreeing with that commercial classification. Unfortunately, these associations sometime change their by-laws or declaration to limit rentals through a vote of the members. Since the absentee owner is sometimes unaware of these votes, the old-timers win again.

Finally, another hurdle that sometimes needs to be overcome is based on code enforcement violations. Sometimes the rental properties fail to properly comply with all the codes related to rentals. City officials and opponents of short term rental properties can cause the code enforcement to look at the rental property to make sure it is in compliance. Fortunately, case law may protect the owner of vacation rental property if it can be proved the city is specially targeting only those properties. The equal protection clause prohibits specific targeting of properties of the same kind.

Can the major opponents who oppose short term rentals be identified? There are three major opponents of short rentals of single family residences: (1) hotels and other competing commercial interests (cutting in on their market); (2) neighbors who were offended by vacation guests who made it inconvenient for them (parking, noise, garbage); and (3) owners who were concerned about speculators buying properties and causing their property values to increase (higher property taxes) or property values to decrease (less value in the event of sale).

The hotel/motel industry initially had little concern with short term rental properties competing against them except in a few isolated resort communities. The hotel industry was relying on its competitive advantage. The hotels had tie-ins with the airline and car rental companies; major brand identification and loyalty program; and a national and international reservation and booking system.

What changed was the ability for persons seeking to stay in a community for vacation being able to compare prices and book on-line (internet marketing). The hotels that had invested in telephone booking systems, now had significant overhead costs that affected them. A single owner of a vacation rental property could now compete with the hotel industry without investing in a booking system or having a tie in with others in the vacation rental business. The playing field became a level playing field like many other areas of our life after the information highway became readily available on laptops, desktops, handhelds, twitter, Facebook, YouTube and most recently “apps” for everything.

Moreover, organizations like FlipKey and TripAdvisor began giving prospective customers reliable on-line critique of available rental properties. Frommer, Fodor, Insight and other travel guidebooks were no longer the only place to obtain reliable information on accommodations. These books are generally used to assist in sightseeing, maps and other activities. The Vacation Rental Industry also made it more convenient and hassle free to rent vacation properties. This included having experienced professional managers who could make it easier to rent their second home, including marketing, registering and licensing, maintaining and collecting rents on the property. The dream of having a possible retirement or second home became an affordable option for more people due to the expanding rental market.

It was therefore only time before large organizations like HomeAway would be able to tap into this growing vacation market and advertise on a national and international scale; all to the hotel industry’s chagrin. The hotel industry had fixed assets including outdated ballrooms, small hotel rooms, overhead cost of fixed employees and increased taxes on their properties. This generally limited their market to the business market rather than vacationers. It was therefore no wonder why the hotel industry has fought to regain their foothold in tourist and vacation accommodation business.

Now a new competitor has emerged who did not have those fixed overhead expenses and who also was willing to subsidize some of the costs. The reason for the subsidy was easily understood: these new competitors (homeowners) wanted a deferral of some of the costs while having an opportunity to own a second or possible retirement home. They could manage the second home with some deferral of costs by renting on a short term basis while still living in their primary residence; and still use the second home some of the time when it wasn’t being rented. The hotel industry had no such subsidy nor could it rent the rooms on such an occupancy condition.
The Hotel Industry has fought back to protect their original market and turf. They have joined with opponents of short term rentals in single family communities. They have sought to have cities enforce life safety codes on the vacation homeowner, including requiring fire sprinkler installation. The hotels have been supportive of community groups opposed to continued rentals in residential communities. They are encouraging restrictive legislative activities expand into the larger cities generally not known as a resort or tourist location; i.e., Chicago. This is their turf and they are seeking to protect it.

A recent mailer warns of the impending legislation in Chicago to limit single family rentals. Neighbors inconvenienced and sometimes harassed by short term renters did not need any encouragement from hotels to voice their anger over continued rentals in their neighborhoods. In several cases we have handled, some otherwise friendly neighbors lost their friends over the issue of allowing short term renters in their community. It is a personal thing to many people. Unfortunately, it is also a motivating event as well. In most of the communities, the vocal opposition just does not want their community to change and become a rental community. Rightly or wrongly, their opposing view means that owners and managers alike must exercise “good neighborly” standards! No longer can either the vacation rental manager or the absentee homeowner ignore bad renters who disrupt the lifestyle of the community. Adopting and enforcing a strong code of conduct could help assuage these vocal opponents. It is not just an economic issue for these homeowners. It is what they perceive as “quiet enjoyment” or one of the bundle of sticks we discussed earlier.

Finally, recent speculation in the housing market and the subsequent foreclosures has also given steam to banning short term rentals. The angry old-timer sees the foreclosures as a way to get renters out of their community even if it means lower property values and empty properties in their neighborhood. This certainly appears hypocritical given that one of the earlier points of opposition to short term rental was possible lowering of property values. Unfortunately, the incongruity is not as blatant as it appears. Instead, these same naysayers can now point to “I told you so” as justification and support of foreclosures over continued short term rentals. This applies to both neighborhoods as well as closed or gated communities and their associations.

There have been several proposed legislative changes that may affect resort dwellings or transient lodgings in the 2010 legislative session. The primary areas are collecting of sales tax and regulations of Life Safety matters.

The Life Safety and Fire Sprinkler issues have been discussed previously. The main thing to note is the ongoing efforts on several fronts to affect the vacation rental industry, whether a single homeowner or a vacation rental manager with hundreds of properties.

Insurance issues are also on the forefront of Florida legislators. Citizen insurance may not be available if the property is valued in excess of $2 million. This does not affect a wide number of homes but may have an impact on some properties.

There are continued discussions of vacation rental properties that are homesteaded but still being used as vacation rentals. Anyone doing this can be in for a surprise when there properties are highlighted in newspapers and on the web when opponents challenge these rentals.

Finally, if your property is not properly licensed and someone is hurt on premises, you can be sure that the injured person’s attorney will argue that there should be punitive damages, especially where the injury is related to the areas that the licensing could have discovered deficient.

So, “what’s the plan, Sam?” Vacation managers and homeowners alike need to be vigilant of changes taking place in their communities. They need to be active and not defer to the other person to get the job done. They need to make it clear that private property rights are under siege – not short term rentals. They need to step to the plate and make sure the old-timers understand that they are also good neighbors in the community. Good neighbors volunteer and support the Little League, the Girl Scout cookie drive, the homeless shelter and you know what the needs are, or you should, within the community. It is time for the manager and homeowner to really show that the vacation rental homeowners care about the community and are also giving back! Protecting your investment in both the professional side and the homeowner side is no longer a spectator sport. Can the tide of more restrictions be changed? Of course! But changing the tide can only be accomplished by dedicated and persistent efforts toward the “common weal.”

A St. Johns County couple whose oceanfront house stands on eroding sand is suing the Army Corps of Engineers over a beach restoration project.

http://www.news4jax.com/video/22525990/index.html

The suit filed in Jacksonville’s federal court says the agency caused the erosion by dredging too much sand from an offshore shoal and depending on outdated information and forecasts of the project’s effects.

The couple told the corps that erosion in 2007 caused $1.6 million in damage to their property on Florida A1A north of Vilano Beach.

The case could affect plans for rebuilding storm-battered coastlines in Vilano Beach and South Ponte Vedra Beach, and potentially work in others areas.

“It’s not just these homeowners. It’s [about] how they deal with these problems in our area. It’s all up and down our beaches,” said Richard Rumrell, the attorney representing homeowners James and Joanne Zimmerman.

More dredging was scheduled this year at the same shoal outside the St. Augustine inlet, but state officials are asking the corps new questions about effects of that work.

Areas near St. Augustine are among several places in St. Johns and Flagler counties where shoreline loss has threatened both homes and A1A, the sole route into parts of the two counties.

A corps spokesman said the agency wasn’t aware of the lawsuit, which was filed Friday.

“We know some people are unhappy,” spokesman Barry Vorse said. “… We are continuing to work toward the renourishment of St. Augustine Beach and we are studying the effects at this time. That’s all we can say.”

Pushed by U.S. Rep. John Mica, R-Fla., federal spending bills included an additional $548,000 last year for studies of how to address erosion issues in St. Johns and Flagler counties.

Mica said Tuesday that he worries several sections of A1A could become unusable if solutions aren’t found.

“The big issue is the loss of your major transportation and evacuation link,” he said.

Aerial photos through the past decade show a progression of land loss at the Zimmerman house, where stairs down a sandy slope vanished over time and a precipice developed.

By 2007, a bulkhead defended the property’s eastern edge. But the ocean had scooped out sand along the side of the single-story building, and the owners hired workers with earth-moving equipment to try to retard the land’s retreat. Concrete reinforcing walls were eventually wrapped around wood retaining walls to help protect the building from erosion.

The Zimmermans’ suit argues that erosion wouldn’t have happened if the corps hadn’t dredged two million cubic yards of sand from the shoal east of St. Augustine’s inlet to rebuild several miles of beaches.

Ocean waves routinely shift sand up and down beaches, so that every shoal or sandbar eventually sends along some material to the shore.

The suit argues that by shrinking the shoal south of the Zimmermans’ home, the corps lowered the amount of sand being carried onto the couple’s beachfront. But because the ocean kept rolling as hard as ever, the suit argues, waves continued to carry sand away from the couple’s property and onto other land, leaving them less and less beach.

Rumrell argued Tuesday that the corps might have avoided the problem by using new research and equipment to recheck projections of the sand movement, but instead used information that was years old.

“Cell phones are outdated in two years. We know how fast technology is outdated,” he said.

He said the suit was mainly designed to get the corps to fix problems in its beach restoration program.

In a December letter, a manager at the state’s Bureau of Beaches and Coastal Systems said the corps’ plan for new dredging “does not provide adequate engineering data and analysis” to show how the work would affect nearby beaches.

“The changes to the coastal system will eventually determine the shoreline position along the adjacent beaches,” said the letter from Lainie Edwards, whose bureau is part of the Department of Environmental Protection.

http://bit.ly/beachlawsuit

By: Richard G. Rumrell

There is nothing like having family members “Home for the Holidays!” But what happens when you don’t have room in the home or apartment for those family members who are visiting? Well, you can check the internet for hotel specials or look for homes for rent on a short term basis. There are many internet sites for each. Expedia, VRBO, HomeAway, Priceline, Travelocity, Hotels.com, and various local web sites in the location of the visit are just a few sources.

Even if you find accommodations at a single family residence there may be other roadblocks to the visit. Some communities have enacted ordinances that prevent homeowners from renting their single family homes on a shot term basis. The cities claim that renting these homes to families on a short term basis (less than 30 days) are “commercial” activities prohibited in residential neighborhoods. Maui Vacation Rental Ass’n v. County of Maui, 2007 U.S. Dist. LEXIS 93176 (D. Haw. Dec. 19, 2007; Maui Vacation Rental Ass’n v. County of Maui, 303 Fed. Appx. 416, 2008 U.S. App. LEXIS 26533 (9th Cir. Haw. 2008).Instead of having affordable available housing in a family like setting, it is either booking several hotel rooms if available and affordable; or no family visit.

This governmental action creates many problems in addition to preventing families from uniting during holiday season.

This restrictive action affects property rights and alters long standing principles of zoning. Property owners have traditionally had full access to the bundle of rights they purchased when buying a home. These rights include mortgaging the property, conveying it to relatives upon death, selling and leasing the property and having quiet enjoyment.. Traditionally owners of single family property could exercise all of these rights unless they violated zoning laws. Gangemi v. Zoning Bd. of Appeals, 255 Conn. 143, 763 A.2d 1011, 2001 Conn. LEXIS 1 (2001)

Zoning laws are specific limitations on property owners’ rights to their property. The use of these “police powers” to regulate zoning had to have “some substantial relationship to the health, safety, morals, and general welfare” or they would be classified as arbitrary, unreasonable and unconstitutional, Village of Euclid, Ohio v. Amber Realty Company, 272 U.S. 365, 47 S. Ct. 114, 71 L. Ed. 30., Courts have extended these rights to maintaining the quality of the neighborhood. However, the definition of “commercial” activity has not included the rental of residential property. Local governments have construed the short term rental as akin to “operating like a motel.” Shields Mt. Prop. Owners Ass’n v. Teffeteller, 2006 Tenn. App. LEXIS 106 (Tenn. Ct. App. 2006); But see Wade v. Patterson, 2009 Tenn. App. LEXIS 34 (Tenn. Ct. App. Jan. 29, 2009.

Some courts are striking down these laws or interpretations by local governments and other courts are allowing these restrictive laws to stand. Ewing v. City of Carmel-by-the-Sea, 234 Cal. App. 3d 1579, 286 Cal. Rptr. 382, 1991 Cal. App. LEXIS 1173 Dianovich v. Grays Harbor County, 103 Wn. App. 1040, 2000 Wash. App. LEXIS 3126 (2000); Jackson & Co. (USA), Inc. v. Town of Avon, 166 P.3d 297, 2007 Colo. App. LEXIS 1211 (Colo. Ct. App. 2007).

The courts that are striking down these interpretations or laws have done so on the basis that use of the property for residential purposes based on duration of use is not proper use of zoning laws, Brown v. Sandy City Board of Adjustment, 957 P.2d 207 (1998)

The Court in Sandy City stated:

“We are not willing to import such a restriction. The Code does not limit the permitted use by referencing the type of estate the occupying family holds in the property or the duration of the occupancy. Thus, it is irrelevant what type of estate, if any estate at all, the occupying family has in the dwelling, i.e., whether the family holds a fee simple estate, a leasehold estate, a license, or no legal interest in the dwelling. It is equally irrelevant whether the occupying family stays for one year or ten days. The only relevant inquiry is whether the dwelling is being used for occupancy by a single family; if it is, the ordinance has not been violated.”

Brown v. Sandy City Board of Adjustment, 957 P.2d at 211;
See also City of Portland v. Carriage Inn 64 Ore. App. 751, 669 P.2d 1185, (1983);Landing Development Corp v City of Myrtle Beach, 285 S.C. 216, 329 S.E.2d 423

Courts that have permitted these interpretations or ordinances have done so because they considered the activities of renting residential homes on a short term basis as constituting “business activities” or commercial activity prohibited in residential neighborhoods.

The comparison of those decisions shows the following characteristics of each position.

Court decisions involving Florida property rights have uniformly found for property owners over local governments. Rollison v. City of Key West, 875 So. 2d 659, 2004 Fla. App. LEXIS 5218, 29 Fla. L. Weekly D 922 (Fla. Dist. Ct. App. 3d Dist. 2004); Belair v. City of Treasure Island, 611 So. 2d 1285, 1992 Fla. App. LEXIS 12581, 18 Fla. L. Weekly D 66 (Fla. Dist. Ct. App. 2d Dist. 1992); Voyeur Dorm, L.C. v. City of Tampa, 265 F.3d 1232, 2001 U.S. App. LEXIS 20726, 14 Fla. L. Weekly Fed. C 1271 (11th Cir. 2001); Flava Works, Inc. v. City of Miami, 559 F. Supp. 2d 1318, 2008 U.S. Dist. LEXIS 43545 (S.D. Fla. 2008)

The various local governments that have instituted these restrictive ordinances have sought to limit the rentals based on issues of noise, parking violations and other nuisances. However, these local governments have yet to distinguish these violations from renters or homeowners whose duration is longer. The consequence of enacting these laws has been substantial and expensive litigation. Perhaps the holiday spirit will energize local governments to take a fresh look at allowing homeowners to keep their vested property rights

By: Richard G. Rumrell

There have been many instances where local governments have sought to control the duration of rentals of single family residences.

Many of the reasons local governments have given for enacting these regulations include preventing parking cars on lawns, curtailing noise during evening hours; eliminating piles of garbage as the vacation renter leaves; stopping overcrowding of the residences and generally attempting to protect the neighborhood from these and other related issues.

Often times these regulations begin with a stated purpose of regulating these vacation properties. Included in the proposed initial regulations are licensing, permitting and inspections. These are not unreasonable goals.

Unfortunately, these goals quickly degenerate into governmental takings. After initial public hearings and workshops the regulations no longer relate to reasonable regulations of these vacation properties but escalate to a total ban of any rentals. Sometimes the ban is for more than three rentals for less than 30 days or a ban on any rentals less than six months or even longer.

Often the local chambers of commerce are opposed to these confiscatory regulations because they know that these family renters bring new revenue and often become new residents in the community. Unfortunately these organizations are either not prepared or ill-equipped for the onslaught of vocal citizen complaints that resonate to local officials on this volatile issue. The heads of these organizations quickly become overwhelmed in dealing with these issues that now seem to interfere with other important issues that have a higher priority for their time and resources. This leaves either the real estate professionals who manage these vacation properties or the homeowner who have purchased these properties having to deal with these neighborhood groups. These neighborhood groups are generally better organized and mount an effective word of mouth (sometimes by emails, twitter and other communications) campaign to the locally elected officials to stop the rentals “in their neighborhood.” This leads to law suits and more friction in the neighborhoods.
http://community.pacificlegal.org/Page.aspx?pid=917
http://nmcompcomm.us/nmcases/NMCA/2009/09ca-048.pdf

Why have local governments and residents of these neighborhoods equated rentals of single family residences to the same as bringing undesirable activities into these neighborhoods, like incinerators, garbage dumps and rehabilitation facilities for ___(you can name the group)? In the past urban planners have used phrases like NIMBY (Not in my back yard) and other acronyms to describe this neighborhood frenzy.

It is the purpose of this brief discussion to lay out an option that is available for BOTH the affected communities and the distressed property owner who only wanted to rent a vacation home until they retired so that they too could become one of the locals.

Jimmy Buffett put to song a true story when his plane was shot at as it was taxiing to Negrille in Jamaica:

“Just about to lose my temper As I endeavored to explain We had only come for chicken We were not a ganja plane Jimmy Buffett “Jamaica Mistaka”

The single family homeowners who purchased the property did not come into the neighborhood to cause problems. Many of the owners actually improved their home so it would attract families to rent. These vacation rental owners are not “slumlords.” They are the opposite. Unless the home met higher standards it would not be successfully rented.

What has happened is that the local elected officials are under significant pressure from voting residents that any person who rented their home was not a factor in getting re-elected. So what did the elected politician do? The politician remembered the saying that all politics are local; and made sure to cover the base for those who vote.
http://tomtruheo.com/News-Clippings/Heldmeyer%20rental%20threat.pdf

Okay. I mentioned a possible approach for both the owner of the vacation rental residence and the homeowner who doesn’t want all the trappings from renters. What about a novel idea? How about local homeowners inviting the owners of the vacation rentals to join the neighborhood group rather than be blackballed from joining? Let both the owner who rents and the owner who doesn’t begin to deal with the real issues of the neighborhood. Let’s stop the demonizing of the person who only wants to use their property in the same lawful manner as the person who neither rents nor wants to rent. There is no need to blacktop a lawn to eliminate a single weed. Owners of single family vacation rentals must also remember that the person next to your home is also interested in protecting their rights to a decent neighborhood!

VENICE FLORIDA 12/11/07 – Richard Rumrell, attorney, argues that short term rentals are legal in Venice under existing code.

Part 2

Part 3

Part 4

By: Richard G. Rumrell

Will the United States Supreme Court uphold our Country’s traditional principle of safeguarding property rights?

With the launch of RUMRELL LAW’s new website we are also launching this Property Rights Blog. These are personal opinions and not that of the Law Firm.

The goal of the Property Rights Blog is to provide regular commentary on property rights issues in Florida and throughout the United States. From time to time we may even look at how other countries are dealing with some of these issues.

Our comments may include cases handled by RUMRELL LAW. But the focus is to open up your thinking on the important issues affecting Property Rights today.

We will look at current and other significant cases from Florida and other jurisdictions and give you our personal comments. We may also comment from time to time on other people?Äôs opinions on property rights issues. We hope that we may create a place to debate the real issues facing Property owners: from those who rent their vacation homes on a short-term basis to businesses who are having difficulty getting permits to create jobs in a community.

We also hope to stimulate you into thinking about why private property rights should continue to be protected from arbitrary or onerous government intrusion as well as illegal actions of others.

We will not be advocating any Tea Rebellions but instead will offer some lively questioning of what is happening in the protection of Private Property Rights.

The Framers of the U.S. Constitution (http://myloc.gov/exhibitions/creatingtheus)¬?recognized the need to safeguard property rights. Private property was always considered to be a fundamental right.

But some commentators have noted changes now and on the near horizon.

Tim Sandefur writes in the National Law Journal:
“[T]oday, the nation’s intellectual elite, and particularly judges, have rejected the traditional principles underlying property rights. They see property as simply a privilege the government can alter or rearrange at will. America’s founders believed that a person’s right to own, buy, sell and use property was a timeless moral principle, not a temporary expedient that changes based on who wins elections. Hence the clash between today’s lawmakers, who want maximum power to manipulate property, and permanent constitutional principles designed to protect each individual’s right to pursue happiness.

Will the United States Supreme Court uphold our Country’s traditional principle of safeguarding property rights?

The United States Supreme Court will have a chance to uphold our Country’s traditional principle of safeguarding property rights this term in the case of Stop the Beach Renourishment v. Florida Department of Environmental Protection, the first taking case to come before Chief Justice John Roberts and Associate Justices Samuel Alito and Sonia Sotomayor.

The United States Supreme Court will be reviewing a decision of the Florida Supreme Court which held that a state statute which prohibits “beach re-nourishment” without a permit did not effect a taking of littoral (beachfront) property, even though it altered the long-standing rights of the owners to accretion on their land and direct access to the ocean.

The U.S. Supreme Court is considering whether the Florida court?Äôs reversal of more than 100 years of Florida law was a judicial taking, and whether the Florida court?Äôs decision violated due process. The lower court?Äôs decision is a classic example of judicial activism.

Even though it is not the Court’s role to legislate, the Florida Supreme Court wiped out a common law right when it summarily altered the definition of littoral property that was in effect for almost one hundred years. An excellent analysis of the issues in this case can be found in the Amicus Brief of the Cato Institute, NFIB Legal Center, and Pacific Legal Foundation.

How do feel about protecting Private Property Rights? Do you still believe that a jury of twelve persons is necessary when Government wants your property?

More to come…

Sources

Tim Sandefur View
OPINION: Setting boundaries for property rights, National Law Journal View
United States Supreme Court View
Amicus Brief of the CATO INSTITUTE, NFIB LEGAL CENTER, AND PACIFIC LEGAL FOUNDATION View