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Dwayne B.
Dwayne B., Attorney
Category: Legal
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Experience:  Began practicing law in 1992
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I live in a condominium building in Atlanta. Last week I

Customer Question

I live in a condominium building in Atlanta. Last week I received a Letter from the Condominium Association manager that I breached the section of the Condominium Declaration which states that "Each Residential Unit shall be used for residential purposes only, and no trade or business of any kind may be conducted in or from a Residential Unit or any part of the Condominium...the terms ”business” and “trade,” as used in this provision, shall be construed to have their ordinary, generally accepted meanings, and shall include, without limitation, any occupation, work, or activity undertaken on an ongoing basis which involves the provision of goods or services to persons other than the provider’s family and for which the provider receives a fee, compensation, or other form of consideration, regardless of whether: (i) such activity is engaged in full or part-time; (ii) such activity is intended to or does generate a profit; or (iii) a license is required therefore." The violation cited was that my unit was listed on AirBnB, which is a violation stated in the newly approved Fees and Fines Schedule, and I was fined $1,000 with a note that additional $100 will be added for each day until I remove the listing from AirBnB, as well as that for any future violations I will be fined more. Since according to the Condominium Declaration short-term leasing is prohibited except with the prior approval from the Board of Directors for hardship, they feel that listing the unit constituted a breach. The fine for the leasing offense was, by the way, $25 until recently, but the BOD has voted at their last meeting to bump the fine to $1,000 for the first offense, with additional $1,000 added to the fine for each subsequent offense (i.e. $2,000 for the second, $3,000 for the third and so on, without the limit for the maximum amount being charged). Regarding the rule about not listing on AirBnB, it never existed and it was introduced at the same recent meeting. I wonder if it is even legal for the BOD to introduce fines to the owners for simply listing their properties on any website including AirBnB, for the purposes of leasing, since to me listing the property does not automatically constitute the breach of the leasing-without-permission rule, and also since AirBnB is not strictly a short-term renting website.
To explain further, I use the unit as my primary residence and do not conduct a “business” from it, and thus I felt that I do not violate Section 14 of the Declaration that was stated. I did use AirBnB to find roommates, which is allowed by the Declaration (“occupancy by a roommate of an Owner who occupies the Residential Unit as such owner’s primary residence shall not constitute Leasing hereunder”), and therefore I felt that renting the unit via AirBnB does not constitute a short-term rental for which I should obtain the permission from the Board. Additionally, I feel that the new rule about punishing anyone from just listing the property on AirBnB is unjustified, as the websites such as AirBnB do not offer only Declaration-prohibited types of rentals such as short-term rentals (and even they are allowed with the Board's approval), but also of those that are allowed by the Declaration (i.e. long-term rentals). Under the Declaration, I am allowed to enter into either of those agreements, and especially since in my case the grandfathered rule against the rental cap applies. I feel that soliciting roommates through listing on any website, including AirBnB, should not constitute the breach on my side to the Declaration rule, nor the Condominium Association has, I feel, any legal right to prohibit any owner from renting, selling, or for that purpose listing his/her property whether on AirBnB or any of the websites. The regulation in question is strictly regarding the leasing of the unit with(out) the BOD approval, and this is, I feel, as far as the authority of the BOD can go. Also, I believe that the BOD has no right to introduce new rules such as this one about not allowing owners to list property on AirBnB or similar websites without an amendment to the Declaration and the vote of the majority of owners, and thus it has no right to impose fines over the breach of that “regulation”. I am not sure if the Association even has any legal right to prevent the owners for doing anything outside of its domain which is the community itself?!
I intend to send a letter requesting a hearing, which is how the due process is listed in our Declaration. For the moment I removed the property listing from AirBnB. I wonder if I am right with my understanding of the rights, and what should be my next step? Should I explain everything to the Board (if you feel that I am right at least with some issues), do you they did the wrongdoing against me, or do you think I have the case against them to bring them to the court and make an example of them?
Submitted: 3 months ago.
Category: Legal
Expert:  Dwayne B. replied 3 months ago.

Hello and thank you for contacting us. This is Dwayne B. and I’m an expert here and looking forward to helping you today.

Generally, a COA or HOA can do anything that their rules and regulations and by-laws allow them to do so long as the rules and regs and by-laws are passed according to the process set up in them (ex. a vote by a certain % of members).

In your case there is a problem that is immediately apparent. The language they are complaining of ""Each Residential Unit shall be used for residential purposes only, and no trade or business of any kind may be conducted in or from a Residential Unit or any part of the Condominium...the terms ”business” and “trade,” as used in this provision, shall be construed to have their ordinary, generally accepted meanings, and shall include, without limitation, any occupation, work, or activity undertaken..." doesn't seem to have a good definition. Normally that language, which originated in city ordinances, is used to restrict residential property from being turned into commercial property but is not used to prevent rentals.

So your first argument would be that the definition is unconstitutionally vague. In addition, there is a rule sometimes known as the "Scrivener's Rule" that came from England and essentially it states that if a term in a contract is subject to two meanings then the court is bound to accept the meaning offered by the party to the contract who did not draft it (or have it drafted) so long as that meaning is reasonable. This applies even if the definition offered by the other party is "more" reasonable.

I don't see there being a huge issue with someone being fined for listing their property on the AirBnB website. It's a little unusual, but generally a HOA/COA can make anything prohibited that they choose to make prohibited, again assuming that they followed the proper procedure.

While you can ask for the hearing, you would be better off hiring a lawyer to represent you in this hearing and then, if you lose this hearing, in the lawsuit which would follow. The concepts and principles involved in this case are much more complicated than they might appear and include issues of Constitutional Law (including grandfathering or ex post facto) and the power of the COA/HOA.

You can sue for your attorney's fees as well as any other damages you have, but the COA/HOA will have a lawyer involved for them, even if he is acting "behind the scenes" and so you should as well.

If you choose not to hire a lawyer then you need to do a lot of research on the issue I set out here as well as familiarizing yourself with the Rules of Civil Procedure, the Rules of Civil Evidence, and then do a lot of legal research on the issues we've discussed because you're going to have to "educate" the judge on the law on this matter.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work. Of course, please feel free to ask any follow up questions in this thread. I want to be sure that all of your questions are answered.

Customer: replied 3 months ago.
Thank you for the answer so far. I am sorry, my inquiry was not fully answered... thus I must ask again. I understand that hiring a lawyer is the fastest route, but I do want first to know where I stand. So, to repeat the most important issues: can they forbid me to list on AirBnB even though AirBnB provides long-term leasing possibilities, which are as I explained allowed by the Declaration? And can they indeed fine me $1,000 when the Court of Appeals stated that $25 is reasonable and our Declaration states that "reasonable fines can be charged"? Finally, an important issue, can I be prevented to seek a roommate (which is allowed and not even defined as "leasing") through any means I find suitable (including AirBnB)?Regarding the vague language of the Declaration in the section they quoted - which they shortened - I attach the Declaration for you to review - please see Section 14. Perhaps after reading the full text you will determine that the language is clear enough?I may be interested in using a lawyer. Any advice regarding that route and estimated cost will be appreciated as well. Thanks in advance for your help.
Expert:  Dwayne B. replied 3 months ago.

can they forbid me to list on AirBnB even though AirBnB provides long-term leasing possibilities

Yes, assuming that they passed the section on this in a manner allowed by the rules then they can prohibit the listing.

And can they indeed fine me $1,000 when the Court of Appeals stated that $25 is reasonable and our Declaration states that "reasonable fines can be charged"?

Yes, the document you attached mentions "reasonable fines" but doesn't provide a definition as to what is reasonable. I'm not aware of any case that has stated $25 is the maximum amount that can be charged as "reasonable" and don't think a court will limit a fine to that amount in 2016.

Finally, an important issue, can I be prevented to seek a roommate (which is allowed and not even defined as "leasing") through any means I find suitable (including AirBnB)?

There is a section of the document that you attached which is going to cause you problems with sub-leasing to someone else. On p. 27, sec. 15(b) it states that "Units may be leased only in their entirety; no fraction or portion may be leased without prior written Board approval." That would mean that if the board doesn't approve the taking on of a roommate then they can point to this section to back up their position and you would have to sue to override that.

In reviewing Section 14, it appears to not prohibit leasing out the condo so long as you follow the requirements that they mention such as not leasing to more than two people per bedroom, etc. I think that if you bring a lawsuit stating that you are allowed to rent the condo out then you would be likely to win based solely on section 14. Some of the other sections may state otherwise but that section doesn't prohibit you leasing the unit and doesn't prohibit advrtisging the unit.

As to lawyers, you can find one to assist you by going to www.lawyers.com and in the section for Area of Practice enter Civil Litigation or Real Estate Law. Either of those will have the skill set you need.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work.

Of course, please feel free to ask any follow up questions in this thread. I want to be sure that all of your questions are answered.

Customer: replied 3 months ago.
P.S. Leasing is explained in the Section 15, and the first paragraph itself may immediately give me the right to do short term leasing while I am there, as I do not use my unit for "regular, exclusive occupancy by any Person other than the Owner", but I also reside in it and use it as my primary residence (even though I travel when I rent it). Here is also defined what a roommate is, and this is how I see that my renting out can be understood: as having a roommate(s). Since the maximum occupancy of my unit is 4 people (2 persons per bedroom, and this is a two-bedroom apartment), I can have as many as 3 additional (paying) roommates, right? Please review this paragraph.
Expert:  Dwayne B. replied 3 months ago.

Yes, I had reviewed that paragraph already and it doesn't appear to prohibit the activity in which you want to engage. The only issue I see is the one I mention above.

Customer: replied 3 months ago.
I understand what you said about the section 14 - thank you!But regarding the subleasing which on p. 27, sec. 15(b) states that "Units may be leased only in their entirety; no fraction or portion may be leased without prior written Board approval," I wonder if indeed a written approval is needed for roommates, since in the opening paragraph of that section (line 6) states "occupancy by a roommate of an Owner who occupies the Residential Unit as such Owner's primary residence shall not constitute Leasing hereunder." Thus, if I understand this correctly, the rules of "leasing" to a roommate and requesting a permission don't apply - isn't that right?
Expert:  Dwayne B. replied 3 months ago.

It's vague and if hey want to use that as an argument they can, if you aren't using the condo as your primary residence, which I understood from your earlier facts you were not. If You are using it as a primary residence then it shouldn't be an issue having someone as a roommate.

Customer: replied 3 months ago.
I am using it as a primary residence. But I am a musician (orchestra conductor) and I travel a lot, so I rent to someone when I am away. All my clothes, instruments, furniture etc. is inside the unit, I am there regularly, attend condo assoc. meetings, communicate with the neighbors, etc.
Expert:  Dwayne B. replied 3 months ago.

As long as you call it your primary residence you should be okay with the sub leasing then.

Customer: replied 3 months ago.
To re-clarify, in my original question in the paragraph two I wrote "To explain further, I use the unit as my primary residence and do not conduct a “business” from it, and thus I felt that I do not violate Section 14 of the Declaration that was stated. I did use AirBnB to find roommates, which is allowed by the Declaration (“occupancy by a roommate of an Owner who occupies the Residential Unit as such owner’s primary residence shall not constitute Leasing hereunder”), and therefore I felt that renting the unit via AirBnB does not constitute a short-term rental for which I should obtain the permission from the Board."
Expert:  Dwayne B. replied 3 months ago.

At one time AirBnB didn't allow itself to be used for anything other than vacation type rentals and their agreements specifically stated it couldn't be used for any other purpose. It could be that the condo board has an old copy of the agreement and is using it in their decision.

Expert:  Dwayne B. replied 3 months ago.

I am about to go offline for a while. If you have any follow ups please post them and I will get to them when I return, but it will likely be several hours.

If your question has been answered then I'd offer my best wishes to you and ask that you please not forget to leave a Positive Rating so I receive credit for my work. Of course, please feel free to ask any follow up questions in this thread. I want to be sure that all of your questions are answered.

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