01/04/2019: D.C.’s new short-term-rental rules allow room for condo associations’ existing bylaws

By Benny L. Kass

January 04, 2019

Q: 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 move-out traffic that creates maintenance distress, having renters who 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 D.C. Council 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 D.C.? We don't really want to change this for reasons above, but we certainly want to be compliant with D.C. law.

A: First - assuming that Mayor Muriel E. Bowser (D) does not veto the measure, and assuming Congress stays out of the District's business - the law will take effect Oct. 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 arranged 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; for the second, $2,000; for the third, $6,000 and revocation of the business license.

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."

For example: D.C. zoning is commercial, including medical clinics, but the condo bylaws specifically disallow 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 bylaws. However, D.C. 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 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.

Benny L. Kass is a Washington and Maryland lawyer. This column is not legal advice and should not be acted upon without obtaining legal counsel. Send questions to [email protected].