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Neighbor vs. absentee neighbor: the Airbnb wars

Kim TroutIt’s a beautiful spring evening, you’ve just finished a BBQ dinner in the back yard, and you’re settling in with a glass of wine to enjoy a bit of quiet at the end of a long day.

Suddenly, and for the third time this week, a cacophony of car doors slamming, and excited hoots erupts as the latest Airbnb renters of your absentee-neighbor/owner’s home arrive for yet another night of non-stop partying. You need to go to the grocery store, but as you exit your garage you find that the renters have blocked your drive.

The noise lasts for about an hour. The sound of the margarita blender is only drowned out by the hoots and hollers of the renters. Just about the time you think it’s going to wind down, you suddenly realize that Team Party has simply moved to invade the community pool.

Finally, it quiets just long enough for the car doors to slam as Team Party heads out for the night. You know the sudden quiet will be short-lived, and you dread the return of Team Party at about 2:00 a.m. when the bars finally close.

This scenario is playing out over and over across the country. This change, welcomed by absentee owners/landlords and hated by permanent residents, has transformed some residential neighborhoods into commercial war-zones pitting neighbor/owner against absentee neighbor/owner.

Home Owner Associations, or HOAs, have sought to regain control by passing covenants, conditions, and restrictions prohibiting short term rentals. The issue rose to the Idaho Supreme Court  in Adams vs. Kimberly One Home Owner’s Association. In Adams, the state’s highest court ruled that despite purchasing the residence when the CC&Rs allowed unlimited “rental,” that the HOA could, by a majority percentage vote, change the CC&Rs to prohibit short term rentals.

Adams argued, among other things, that there were provisions of the CC&Rs that would have allowed the HOA to regulate conduct of Adams’ renters, which the HOA membership found offensive. The court chose against Adams’ argument that he held a vested contractual and property right secured at the time of purchase, and focused instead on the concept of majority voting rights.

The Adams decision resulted in swift action by the Idaho Legislature in the 2016 session. The Legislature nullified the Adams decision by striking down blanket rental prohibitions in CC&Rs.

Gov. C.L. “Butch” Otter signed the House bill into law, setting the stage for what is likely to be a long-drawn-out battle pitting neighbor/owner against absentee-neighbor/owner. The new battleground will likely involve calls to police, new efforts by HOAs to change local zoning rules and regulations, and renewed efforts to use noise/nuisance rules within CC&Rs to impose fines to curb abuses.

It’s reported that the typical Airbnb renter stays over for one or two nights.  Lacking any incentive for civility, neighborly responsibility, or penalty for exhibiting “what goes on in Vegas stays in Vegas” kind of conduct, and without immediate enforcement tools for this now “legal” activity, HOAs and residents of purely residential neighborhoods appear left without a remedy for the rude, disruptive, here-today-gone-tomorrow Airbnb renter.

Some cities, such as New York and Los Angeles, have enacted zoning codes prohibiting rentals of fewer than 30 days in certain residential neighborhoods. But enforcement is difficult if not impossible due to a lack of resources. L.A.  has even gone so far as to establish a ‘whistle-blower’ program, but it has had little or no impact in halting the illegal rentals. To date, it appears that no Idaho city has enacted such prohibitions.

It seems that full-time residents, and perhaps HOAs, will seek both stricter local ordinances and enforcement in an effort to preserve their residential property rights. Whether local government will respond has yet to be seen. Alternatively, perhaps an appropriate coalition will seek to have the Idaho Legislature revisit the issue in 2017.

This new war is certainly going to have many twists and turns as it unfolds. This conflict between the interests of owner-occupiers versus the commercial profit motive of short term rentals may even explode into constitutional law issues before its resolution. Like the range wars of the 1800’s, the Adams decision now appears to be just the first skirmish in what will likely be a long battle over competing property rights, soon to be strewn with casualties along the way.

Lawyer Kim Trout served as counsel for Mr.  Adams in the case before the Idaho Supreme Court. He is managing member at Trout Law PLLC, and his law practice is focused on real property issues, risk management, and commercial litigation in business and construction.

About Kim Trout