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CalAttorney2
CalAttorney2, Lawyer
Category: Real Estate Law
Satisfied Customers: 10238
Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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I'm in a small town in california that grants 25 permits

Customer Question

I'm in a small town in california that grants 25 permits for short term rentals. I put my name on the waiting list in December 2013 to apply for a permit and decided then, as i 'registered' my interest in applying, to proceed a rent my house to tourists after combing the internet and finding out that 50 other people were doing the same in this town of 5,000 people and 2400 residences. A neighbour denounced me in June and the city sent me a cease and desist order, which I complied to immediate. I paid all back taxes and penalties immediately. I need to go in front of the planning commission tomorrow who is review my case. The neighbours aren't concern as much as with noise and traffic as they are about 'punishing me for being in violation of the ordinance. Their reason to the commission is that if the commission grants me the permit it gives the green light to the other 50 rentals to continue doing so until they can apply for a license. Any thoughts on how to should response: for example,note that i am in violation but promptly complied and paid all taxes/penalties.
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

Unfortunately there really isn't a "good" defense to this on its face. You violated the city ordinance, and the "everybody else is doing it" defense is a terrible argument.

Promptly paying fees and back taxes may be seen as mitigating, but it really is just doing what you are supposed to do.

Here is how I would recommend you look at this issue:

  • You are in a legally compromised position
  • You can improve your odds by hiring a lawyer (a lawyer doesn't give you any additional rights, but they can help you with making your argument - this is what they do for a living, and they can help finesse your research, and perhaps find something that you are overlooking that is helpful to your case).
  • Look at this as a business judgment call - if your loss of rental income is going to be greater than the cost of hiring a lawyer for a single (rather straight forward) administrative hearing, then you should hire the lawyer. If you are going to spend more on a lawyer than you could expect to make on your rental, don't waste the money, roll the dice and represent yourself.
  • Don't wait to hire a lawyer, your lawyer needs as much time as possible to prepare an argument, while most lawyers can pull together a reasonable argument on short notice, you want to give them the maximum amount of time to review your case, and see if there really is something you may have missed that can help ("arbitrary enforcement" is a big one).

You can find local attorneys using the State and local Bar Association directories, or private directories such as www.AVVO.com; www.FindLaw.com; or www.Martindale.com (I personally find www.AVVO.com to be the most user friendly).

Customer: replied 1 year ago.
I was asking advice as to how to best present my story. For example, how should i present my opening statement -- should i just restate the facts or should i be very concilatory. The majority of your response was to seek the advice of a lawyer. I thought I was doing this by submitting the question to you and using this service. If you need more details in order to provide a quick answer i can provide them.
Expert:  CalAttorney2 replied 1 year ago.

Dear Customer,

You are "stepping into a hornet's nest" - the thing I am worried for you about is losing your spot on the wait list to rent out your unit short term legitimately.

This is a legal argument, and while presentation is important (you don't want to appear arrogant about your violation), the way in which your presentation goes is going to be much more dependent on the legal issues than the way you appear.

I understand that customers don't come here to be told "go hire a lawyer" - but in a situation such as this, the only way to properly ensure you are represented and can address your rights is to have a lawyer represent you.

(Having a lawyer provides a lot of benefits, they will be able to review the law (discussed above), they have experience arguing these matters (also discussed above), they can prepare a more thorough argument to represent you (this is what we do for a living), they represent a 'buffer' between the legislative/regulatory body and you (you don't have to appear and apologize, and start every phrase in a conciliatory fashion - your attorney can represent your case much more forcefully - this is going to be very important if you want to keep your status on the rental list).

I cannot make the decision as to whether or not you wish to hire a lawyer, but I wouldn't go it alone if I were in your shoes (use the business judgment formula I provided above to determine whether or not this is a worthwhile investment, but this is a relatively small investment for legal services (I don't think a lawyer is going to charge you much for doing this)).

As far as what you want to do if you go it alone. Start by researching the law on the application process, and what factors go into losing a spot. See if violations of the rental code can lead to losing your spot on the short term list. See what other disciplinary action can result. Knowing what exactly your legal position is is going to help you focus your legal arguments.