butrcup_smb

HOA summons and complaint over Air BnB

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Hi, I need help filing my answer to the court for a summons and complaint suit I received from my HOA.  I am working on the pldc -010 form but I am not sure how much detail I give in my answers and I need help filling out the form. 

Basically the long and the short of the story is: I rented my house out on Air bnb last summer, not realizing that it was again HOA rules.  They sent me a letter to stop, I did after a few existing reservations that I had.  My property is unlisted and has been unlisted for a very long time, but apparently people are still complaining that I am renting out my home.  I honestly stopped quite some time ago, so I don't know where this is coming from.  They haven't supplied any proof, other than saying my neighbors are complaining and that my property is listed (which it is not).  Help?!

HOA_summons_Air_bnb.pdf

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First thing I would do is make 100% sure that your property isn't still listed on airbnb by mistake. The last thing you want is to show up to court and have them show proof that the home continued to be listed long after they sent the letter. 

Next, I would contact them and ask what proof they think they have that you've continued to rent it out. If it's just your neighbors, I'd check with 6 or 8 of your closest neighbors and ask if they complained and then show them the letter and ask if they believe you still had renters after the date on the letter. Don't argue with them and don't be aggressive. I'd even record each interaction for later reference.

Depending on what you come up with, you might be able to go back to the lawyers and tell them you'll stipulate to resigning an agreement that specifically precludes you from using airbnb in exchange for them not asking the court for you to pay their legal fees.  They aren't otherwise asking for money; all they want is a court order telling you to stop.

Whatever you do, don't miss the deadline to answer the complaint.

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2 hours ago, Harry Seaward said:

First thing I would do is make 100% sure that your property isn't still listed on airbnb by mistake.

Or that some scammer isn't advertising the property causing headaches for the OP in more ways than one.

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I checked and it's not still listed. Based off of the summons I marked general denial on the answer form because I believe the complaint isn't verified.  I was told that if just the attorney signed it, then it's not verified... Is that correct?  

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Each jurisdiction is different and I don't know how it works in California or if a verified complaint is even a thing there. @calawyer would know and probably have better advice than mine anyway. 

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18 hours ago, butrcup_smb said:

They sent me a letter to stop, I did after a few existing reservations that I had.

This may be  your biggest problem.  A cease and desist letter doesn't mean after you finish up business you already agreed to it means NOW.  I read the suit and this is probably what they are referring to when they say then sent you a letter and told you to stop and you ignored them.  Not necessarily that you are still renting now.

Another question is they claim they sent a letter CMRR requesting you engage in alternative dispute resolution (ADR) to settle this and you ignored that as well.  Did that happen?

I would also recommend getting out your CC&Rs and reading them ASAP.  They have already filed suit and my guess is that the covenants allow for them to be paid their expenses and attorney fees even if they drop it now.  This is likely going to cost you money no matter how you settle this depending on how that document is worded.

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Your best bet would be to contact a lawyer a lot of lawyers offer free case reviews. I probably wouldn't admit to anything to anyone until meeting with a lawyer.

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Just my initial thoughts on a defense in a case like this:

If this happened to me, the first thing I would want to do is closely read the contract that precludes renting the home.  Does it define renting?  I would check any state laws that define renting your home.  I would want to look at whether renting your home makes you a "landlord" or requires a "lease" or something of that nature.  I would then work a defense (if I can) that a short term "rental" of my home is not the same as what is described in the contract.  I can understand the contract prohibiting me from renting out my house on a lease for a long-term period of 6-months or 12-months, etc, but I would look for a way to state that they can't prohibit my lending the use of my house for a weeked or 7 days while I am away and that doing so does not create a "lease" as defined by law (if that is, in fact, true) and is not prohibited by the contract.

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28 minutes ago, fisthardcheese said:

Just my initial thoughts on a defense in a case like this:

If this happened to me, the first thing I would want to do is closely read the contract that precludes renting the home.  Does it define renting?  I would check any state laws that define renting your home.  I would want to look at whether renting your home makes you a "landlord" or requires a "lease" or something of that nature.  I would then work a defense (if I can) that a short term "rental" of my home is not the same as what is described in the contract.  I can understand the contract prohibiting me from renting out my house on a lease for a long-term period of 6-months or 12-months, etc, but I would look for a way to state that they can't prohibit my lending the use of my house for a weeked or 7 days while I am away and that doing so does not create a "lease" as defined by law (if that is, in fact, true) and is not prohibited by the contract.

The problem is the longer OP drags this through court, the higher the attorneys' fees will be.  This isn't doing battle with a debt buyer where attorneys' fees are capped at $1,000.  OP could realistically be liable for $15,000 or $20,000 in legal costs if he/she takes this to trial and loses.

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35 minutes ago, Harry Seaward said:

The problem is the longer OP drags this through court, the higher the attorneys' fees will be.  This isn't doing battle with a debt buyer where attorneys' fees are capped at $1,000.  OP could realistically be liable for $15,000 or $20,000 in legal costs if he/she takes this to trial and loses.

35 minutes ago, Harry Seaward said:

 

1 hour ago, fisthardcheese said:

If this happened to me, the first thing I would want to do is closely read the contract that precludes renting the home.  Does it define renting?  I would check any state laws that define renting your home.  I would want to look at whether renting your home makes you a "landlord" or requires a "lease" or something of that nature. 

I would suggest reading the PDF of the complaint.  This attorney has spelled it out VERY clearly and it is in Superior Court.  They have several causes of action including the nuisance using this unit as a short term rental caused other owners as well as violation of the CCRs prohibiting short term rentals of less than 30 days.  California is very anti-AirBnB and has made many legislative moves as well as HOAs prohibiting using your condo or town home as a short term rental in that manner.

I tried putting Harry's comment down here (I HATE this new site that won't let you fix stuff like this)  and agree.  This is not a debt case where they are on a flat rate fee.  This could get very expensive very quickly and not only escalate in cost but result in foreclosure on the unit if the OP can't pay the court ordered amount.

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It might not hurt to look at this from the other side. There are many stories of people having neighborhoods ruined by Air BnB. While many folks hate HOA's, others have found they are the only way enforce civility in a selfish world.

My point is your adversaries are likely in no mood to "play nice." I've suffered with "bad neighbors" - if I was on HOA I'd advocate making an example out of you. You're best bet may be to give them what they want now, before  someone like me takes control of the other side.

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5 hours ago, butrcup_smb said:

I own my home, it's a  detached single family residence. 

Oh and I have always lived in my house full-time b

None of which matters when it comes to the HOA and the CC&Rs.  The covenants clearly restrict short term rentals of less than 30 days and you violated it repeatedly.  HOAs carry a LOT of power including the ability to foreclose on your home if they are awarded damages, costs, and attorney fees and you can't or don't pay them.

4 hours ago, Goody_Ouchless said:

There are many stories of people having neighborhoods ruined by Air BnB.

Hence the reason many communities and counties in California have become VERY aggressive in enforcing the codes against these short term rentals.  The constant stream of traffic of unknown renters along with the damages they cause, parties, lack of privacy etc.  makes AirBnB highly undesirable in many communities.  Not to mention there is absolutely NO way to screen these short term tenants for potential criminal issues.

 

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16 hours ago, Harry Seaward said:

The problem is the longer OP drags this through court, the higher the attorneys' fees will be.  This isn't doing battle with a debt buyer where attorneys' fees are capped at $1,000.  OP could realistically be liable for $15,000 or $20,000 in legal costs if he/she takes this to trial and loses.

 

16 hours ago, Clydesmom said:

They have several causes of action including the nuisance using this unit as a short term rental caused other owners as well as violation of the CCRs prohibiting short term rentals of less than 30 days.  California is very anti-AirBnB and has made many legislative moves as well as HOAs prohibiting using your condo or town home as a short term rental in that manner.

Both very good points.  I was just giving my initial thoughts after reading OP's summary of the issue.  After thinking it over, a settlement is probably the best outcome.  I would try to work out an agreement to not use airb&b or similar and would probably have to agree to pay at least some costs incurred up to that point.

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Soapbox moment:   I am really sick of HOAs.    I cannot stand them and wish they can be wiped off the face of the planet.    

Legal moment:    You made a huge mistake continuing business after you received the cease and desist.    You are liable for "damages" for that reason alone.    If we are talking actual damages, it is probably minimal.   If there are liquidated damages in your HOA agreement, you might as well see if they will settle for that without any additional damages because I have never seen an HOA settle for less and almost every HOA agreement I have read had attorney fees to the prevailing party provisions.

ETA:   You can add my disgust toward government telling private individuals what they can and cannot do with their private property when they are not causing harm to anybody.

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18 hours ago, Goody_Ouchless said:

There are many stories of people having neighborhoods ruined by Air BnB.

Most of these stories are exaggerations, if not down right fabrications, by the hotel industry ticked off they have too many vacancies.   You know as if a family of 5 is going to seriously get 2 rooms at a hotel when they can rent a part of a house at half the price.

ETA:  That's not meant to encourage the OP.   OP is in serious trouble,

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1 hour ago, neweuquol said:

Soapbox moment:   I am really sick of HOAs.    I cannot stand them and wish they can be wiped off the face of the planet.

Yeah, count me out as a fan as well, but in some neighborhoods they do serve the purpose of keeping houses from looking like Sandford and Son.

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1 minute ago, Harry Seaward said:

Yeah, count me out as a fan as well, but in some neighborhoods they do serve the purpose of keeping houses from looking like Sandford and Son.

You will not see an HOA in those neighborhoods because there is no money to be made.   You only see an HOA in upper middle class to upper class neighborhoods that want to keep Sanford and Son from getting a HUD loan to invade their neighborhood.

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ha ha.... Yeah I am not a fan either, I haven't met one person who liked their HOA, whether they had problems with them or not, they are just very controlling.  I'm trying to make them happy, but I also want to protect myself throughout this process. 

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46 minutes ago, neweuquol said:

You will not see an HOA in those neighborhoods because there is no money to be made.   You only see an HOA in upper middle class to upper class neighborhoods that want to keep Sanford and Son from getting a HUD loan to invade their neighborhood.

They are everywhere in Phoenix metro.  The subdivisions built before the 80's have virtually none.  With a few exceptions scattered around, anything since 2000 is almost a given, regardless of home value.  That 20 year period in between marks their rise to power here.

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1 hour ago, Harry Seaward said:

Yeah, count me out as a fan as well, but in some neighborhoods they do serve the purpose of keeping houses from looking like Sandford and Son.

They are voluntary, just don't move in one. I like mine, please don't force me to not have one.

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3 hours ago, neweuquol said:

Soapbox moment:   I am really sick of HOAs.    I cannot stand them and wish they can be wiped off the face of the planet.    

ETA:   You can add my disgust toward government telling private individuals what they can and cannot do with their private property when they are not causing harm to anybody.

The problem is definition of "harm." I really don't care if you are quietly practicing cannibalism in your basement, but if I hear your sub-woofer I believe the penalty should be 20 years in state prison. We are actually going through this dichotomy at home - my wife sees a constant police presence at a particular house on our street and wants to move. I, on the other hand, don't care about the unsolved murder at that house as long as the gang-bangers keep having their hip-hop dope-fests at another location.

Not to hijack, just pointing out that members of your HOA may be as passionate about Air BnB as I am about noise.

(The friends I know that use Air BnB are definitely not families looking to make ends meet on a family vacation - they are non-stop-party people that travel with more drugs than clothing.)

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1 hour ago, Goody_Ouchless said:

The problem is definition of "harm." I really don't care if you are quietly practicing cannibalism in your basement, but if I hear your sub-woofer I believe the penalty should be 20 years in state prison. We are actually going through this dichotomy at home - my wife sees a constant police presence at a particular house on our street and wants to move. I, on the other hand, don't care about the unsolved murder at that house as long as the gang-bangers keep having their hip-hop dope-fests at another location.

Not to hijack, just pointing out that members of your HOA may be as passionate about Air BnB as I am about noise.

(The friends I know that use Air BnB are definitely not families looking to make ends meet on a family vacation - they are non-stop-party people that travel with more drugs than clothing.)

So basically to hell with freedom to do what you want with your own property because you do not want to have to call in an excessive noise complaint?     Cool.

I guess we can make a lot of generalizations but I will use Air BnB or I will actively seek out a short term rental rather than get a hotel when I need a place for longer than a day.    I am hardly a non-stop party person more drugs than clothing.   I do not know how it is in most places but most hotels around me are in places where I rather not walk outside after sunset.    On top of that I get to pay extra for a cramped room with no amenities so yes I will "illegally" pay a private homeowner LESS money to have access to a safe neighborhood and a few basic amenities (like a stove) when I am staying anywhere.   

My last vacation would have been over $200/night for a "hotel" for a week ($1,400).   I got a 3 bedroom house for $600.   Nope will not apologize because everyone wins.    The prorated "monthly rent" was about twice that of what I would pay for a similar house if I was staying long term but I did not care because I saved $800.   Hotels would rather force me into a cramped room where someone was sleeping on the floor.

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I love the idea of Air BnB and I love HOAs, ah freedom of choice. 

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