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Housing Counsel Public Condo Law vs. Private Condo Law

Written by Posted On Monday, 14 January 2019 05:00

Question: I am the President of a mid-size condominium in Washington.

Our Bylaws specifically prohibit short-term rentals of any kind. The board – and most of our members – 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 don’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 – under certain conditions – using an owner’s primary residence for such short term rentals as AirBnb.

Our question: are our current Bylaws, rules and regs unlawful in DC? We don’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 District’s business – the law will take effect October 1, 2019.

The simple answer to your question is no, your Bylaws – assuming they are recorded among the District land records – are perfectly legal and enforceable. The community association attorneys here in Washington arrange to have the following language included in the new law: “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..”

If the host – the owner who wants to use the unit for short term rentals – finds language in the association’s governing documents prohibiting such rentals – 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 association’s Bylaws prohibited short-term rentals, that would still be enforceable by the condo board. There is what I call “private zoning vs. public zoning”. 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 “home occupancy permit” 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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Benny L Kass

Author of the weekly Housing Counsel column with The Washington Post for nearly 30 years, Benny Kass is the senior partner with the Washington, DC law firm of KASS LEGAL GROUP, PLLC and a specialist in such real estate legal areas as commercial and residential financing, closings, foreclosures and workouts.

Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission’s real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.

kasslegalgroup.com
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