By Omar Passons.
Homeowners have a right to responsibly rent out their homes — or rooms in those homes — on a short-term basis.
For those who willfully break existing laws with noisy guests who trash the community, there should be penalties. But it’s a bad idea to let uncertainty about not recognizing someone walking into your neighbor’s home be the determining factor in deciding whether a short-term rental is appropriate.
With eclectic neighborhoods, beautiful beaches, nearby Tijuana and a growing craft beer scene, San Diegans are fortunate to call a place home that many people can’t wait to visit. Increasingly, many of these visitors have been choosing hotel alternatives like Airbnb, VRBO or even Craigslist to find places to stay that either save money or present a unique opportunity to experience a local neighborhood.
There are people who say that since some homeowners are irresponsible, no one should be allowed to rent out their home – or even a room in their home – on a short-term basis. If guests are reasonably quiet, well-mannered, tidy and unobtrusive, is there any reason I should get to tell my neighbor who can come and go? And why should payment involved change that?
The situation is worse when one neighbor can bring the government’s enforcement power to bear on another, without a requirement that both sides get to make their case to an independent body.
A neighbor can’t tell on sight whether a person dragging a roller bag is a relative from out of town or an Airbnb guest. And the use of the property is the same either way. Given that Airbnb allows for careful screening of guests based on the guest’s past behavior, it can actually be a more respectful choice than just renting to someone with no such information.
The city of San Diego claims one person is running an illegal bed-and-breakfast by virtue of renting out two rooms on a short-term basis, even though she didn’t serve the guests breakfast or any other food. The San Diego Municipal Code defines a bed-and-breakfast as “visitor accommodations within a residential structure where breakfast is typically provided for guests.” That’s all the information you get to figure out the difference between a legal boarder/renter for whom no permit is needed, and a commercial bed-and-breakfast for which several thousand dollars and a permit is needed.
Our Constitution requires that an ordinance like this must define the offense in a way so that ordinary people can understand what conduct is prohibited, and establish standards to permit police to enforce the law in a non-arbitrary, non-discriminatory way. As a reader, can you tell with certainty what conduct qualifies as a commercial bed-and-breakfast? If the city enforces this rule against one neighbor but not five (or 500) others, is that the arbitrariness the Constitution protects against?
I empathize with residents who have noisy or ill-behaved neighbors. But creating a blanket prohibition and fining San Diego residents thousands of dollars based on the complaints of a vocal minority is an egregious overreach.
Keep in mind that San Diego is home to more than 3,100 Airbnb rentals, and responsible, law-abiding San Diego residents own a vast majority of those. This hospitality option is the wave of the future. San Diego should find a way to embrace and grow this business model – which directly supports our region’s third-largest industry – rather than crush it with the typical government response of regulations and fines.
Omar Passons is a construction and land use attorney who’s currently representing an Airbnb host in a legal dispute. Passons’ commentary has been edited for style and clarity. See anything in there we should fact check? Tell us what to check out here.