Housing Counsel Public Condo Law vs. Private Condo Law
Written By: Benny L Kass
Sunday, January 20, 2019
Question: I am the President of a mid-size condominium in Washington.
Our Bylaws specifically prohibit short-term rentals of any kind. The board ndash; and most of our members ndash; agree that cutting out short term rentals and subleases of less than a year helps cut down on the move in and out traffic that creates maintenance distress, having renters that donrsquo;t care about the building and administrative tracking of who resides in the building.
One of our board members called to my attention that the Council of the District of Columbia recently enacted legislation that will allow ndash; under certain conditions ndash; using an ownerrsquo;s primary residence for such short term rentals as AirBnb.
Our question: are our current Bylaws, rules and regs unlawful in DC? We donrsquo;t really want to change this for reasons above, but we certainly want to be compliant with DC law.
Answer: First, assuming that the Mayor does not veto the Act, and assuming Congress stays out of the Districtrsquo;s business ndash; the law will take effect October 1, 2019.
The simple answer to your question is no, your Bylaws ndash; assuming they are recorded among the District land records ndash; are perfectly legal and enforceable. The community association attorneys here in Washington arrange to have the following language included in the new law: ldquo;if the short-term rental is on property within a condominium, cooperative, or homeowner association, the host shall provide proof that the ...association permits the operation of a short-term rental..rdquo;
If the host ndash; the owner who wants to use the unit for short term rentals ndash; finds language in the associationrsquo;s governing documents prohibiting such rentals ndash; but nevertheless proceeds with such rentals, there are strict civil penalties. For the first violation, 500; 2000 for the second, and 6,000 for the third and revocation of the business license. These are fined levied by the City.
Let us assume, however, that such additional language was not included in the new law. If the associationrsquo;s Bylaws prohibited short-term rentals, that would still be enforceable by the condo board. There is what I call ldquo;private zoning vs. public zoningrdquo;. Example: DC zoning is commercial, including medical clinics but the condo bylaws specifically disallows such clinics
Since the condo bylaws are more restrictive than the public law, it is valid. However, if the zoning is residential, the condo cannot allow commercial use unless the owner obtains a ldquo;home occupancy permitrdquo; from the District.
The condo board can also fine the owner who is violating the By-laws. However, District of Columbia law requires that the owner must first be provided a notice and an opportunity to be heard, before any fine can be imposed. This is not a formal court hearing; it is a meeting between the alleged violator and either the board or a committee appointed by the board. It gives the owner due process rights to try to explain why there was no violation.
This same due process opportunity for a hearing is also in the Maryland and Virginia condominium acts.
As you can see, it all depends on the zoning laws, the condo law in your jurisdiction, and your governing documents.
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