To Airbnb or Not to Airbnb? That is the Question.

July 17, 2019
Posted in Real Estate Law
To Airbnb or Not to Airbnb? That is the Question.

Over the past decade, innovative short-term rental platforms such as Airbnb, Home Away and FlipKey have revolutionized the way we travel. They allow you to rent out your home or investment property on a weekly or even daily basis, requiring only a few easy clicks from your customers. The explosion of these sites has outpaced the development of local zoning regulations regarding this inventive use of property. As a result, municipalities and courts have struggled with the tension between short-term rentals and local ordinances.

Zoning ordinances, of course, divide municipalities into residential, commercial, industrial and other zones. They usually require a residence to be occupied exclusively by one family, and define a “family” as one or more persons related by blood, marriage or adoption or unrelated persons who live and cook together as a single housekeeping unit. When not defined explicitly in the zoning ordinance, our courts have construed a single housekeeping unit to be something that is “sufficiently stable and permanent so as not to be fairly characterized as purely transient.”  When does a short-term rental run afoul of these requirements?

Our Commonwealth Court addressed this question in a trio of recent cases.  In two of these cases, the property owner lived in the residence at least part time. The Court discussed how the use of these properties was not purely transient, and held that short-term rentals were permitted because the zoning ordinance did not explicitly prohibit them.  In the third case, the property was used solely for investment purposes; the owner never lived there. Here, the Commonwealth Court made no mention of the purely transient nature of the property’s use, holding that short-term rentals were permitted simply because the zoning ordinance did not prohibit them.

Pennsylvania’s Supreme Court recently reversed this third decision in Slice of Life, LLC v. Hamilton Township Zoning Hearing Board, re-stating the long-held principle that uses (such as short-term rentals) which are not expressly permitted in a zoning ordinance are excluded by implication. The Court emphasized that these short-term rental cases must be analyzed against the definitions of “family” and “single housekeeping unit” and the need for permanence.  Here, there was no question that the use was purely transient.

The legality of a short-term rental is very fact specific. Some municipalities are beginning to make specific provisions for short-term rentals. Others employ unique, and often inadequate, regulations in their zoning ordinances. The amount of time an owner spends at his or her property matters. If you are considering using a property for short-term rentals, or if you are facing enforcement issues, please make an appointment with us to discuss these matters in depth.

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