Condo Media - May 2017 - 37

With the rise in popularity of Airbnb,
condominiums located in popular tourist spots, such as Boston and the Cape,
are increasingly faced with the issue
of whether Airbnb rentals are allowed,
and, if so, to what extent condominiums
can regulate unit owners who are leasing their units on Airbnb.
Airbnb is an online marketplace
where people can list their residence-
be it a single-family home, a second
home, an apartment, or a condominium
unit-for rent for daily, weekly, or even
monthly periods of time. Renting a
property on Airbnb is often much less
expensive for the traveler than a traditional vacation property, and it can be
very lucrative for the owner of the property which would otherwise sit vacant.
For condominiums, the listing of one's
unit on Airbnb can be problematic.
Airbnb renters may treat the condominium as a hotel and/or vacation
property and will not even know of, let
alone comply with, the rules and regulations of the condominium with respect
to the use of common areas and facilities.
Also, Airbnb renters could pose a safety
concern, especially for security buildings, by allowing access to individuals
who would not otherwise be allowed on
the premises. Finally, the constant use
of common areas and facilities by such
short-term renters could accelerate
the wear and tear on the common areas
and facilities, requiring more frequent
maintenance, repair, and replacement of
the common area amenities.
ADDRESSING AIRBNB
IN CONDOMINIUMS
So how does the governing board of a
condominium restrict owners from renting out their units on Airbnb? In some
situations, such as seasonal properties,
Airbnb rentals are not restricted-they're
encouraged. In these situations, the board
and especially the unit owner should be
cognizant of any laws and/or regulations
that may govern the short-term rental of
properties in the municipality in which
the condominium is located. However,
for those condominiums that were not intended to be used as essentially a vacation
property, the first place the board must
look to for guidance is the condominium's
governing documents.

As with all restrictions
on the use of one's unit,
the prohibition is best
set forth in the master
deed, declaration of
trust, or bylaws.
In more recently drafted documents,
Airbnb rentals by name and other uses
of one's unit as a vacation rental are
strictly prohibited. In pre-Airbnb governing documents, many prohibit rentals for less than 30 days or for transient
purposes. As with all restrictions on the
use of one's unit, the prohibition is best
set forth in the master deed, declaration
of trust, or bylaws. Prohibition of Airbnb or other short-term rentals by rule
or regulation may not be enforceable if
challenged. Accordingly, to be certain
your condominium can prohibit Airbnb
or other types of short-term rentals,
if such a prohibition is not set forth in
your governing documents, your condominium should consider amending its
governing documents, in particular the
declaration of trust or bylaws.
If prohibitions against Airbnb or
other types of short-term rentals are
not included in your governing documents and amending them to do so will
be difficult, if not impossible, due to the
requisite percentage of beneficial interest necessary to amend your governing
documents, there are other means that
a board can use to regulate Airbnb or
other short-term rentals. The board
could require that all leases of whatever
length be approved by the board and/
or contain certain provisions to prevent
abuses of the condominium's common
areas and facilities and that the renter
be informed of these provisions. Failure
to comply with these requirements/restrictions by the renter will subject the
unit owner to fines or even limitations
on his/her ability to rent his/her unit in
the future.
In addition, as mentioned above,
the board should be aware of any rules
and regulations that the municipality
may impose on property owners that
may prevent them from renting their
property on Airbnb, such as zoning,

licensing, and taxes. Many municipalities are now requiring owners who use
their property for lodging purposes
to be licensed as a bed and breakfast
and/or that the property itself meet
certain code requirements for safety,
sanitation, and access and egress. If the
condominium does not meet these code
requirements, then unit owners cannot
rent out their units on Airbnb.
Argument could also be made that
if the master deed restricts the use of
the condominium for solely residential
purposes, renting one's unit on Airbnb
is a commercial use of the property and
therefore prohibited. In this regard,
even if Airbnb or other types of shortterm rentals are allowed, the unit owner
should be aware of any restrictions
in his/her mortgage for use of one's
residence as a commercial property.
Both the unit owner and the board
should make sure they have sufficient
insurance coverage for both the condominium and the unit if unit owners are
allowed to rent their units on a shortterm basis.
LEGISLATIVE REGULATIONS
Finally, due to the popularity of
Airbnb, it appears it is here to stay
(pun intended), but will be regulated
by not only local government, but also
by the Commonwealth as well. For the
past two legislative sessions, a bill has
been introduced to regulate Airbnb,
whereby properties would be subject
to inspections, insurance requirements, registration, and taxation. This
proposed bill specifically includes
condominiums. Therefore, if your condominium does not already prohibit or
restrict Airbnb rentals, now is the time
to amend your governing documents
to do so, before unit owners can argue
that Airbnb rentals are legal, so long
as they comply with the laws of the
Commonwealth. Your governing documents will control if properly drafted
and implemented.

n MARK ROSEN, ESQ. IS AN
ATTORNEY WITH SCHOFIELD LAW
GROUP, LLC IN BOSTON, MASS. CHRIS
DONNELLY OF THE SAME FIRM WAS A
CONTRIBUTING COLUMN AUTHOR.

May 2017

Condo Media - May 2017

Table of Contents for the Digital Edition of Condo Media - May 2017