San Francisco Law Does Not Require CC&R Updates
Many HOA boards ask whether San Francisco’s new Airbnb law (effective February 1, 2015) supersedes their declaration of covenants, conditions and restrictions’ (“CC&Rs”) short-term rental provisions or whether they need to amend the CC&Rs to address Airbnb. The brief answers to both questions are “No.”
Airbnb is a website for people to rent out lodgings, usually on a daily basis. The new Airbnb law, San Francisco Administrative Code Chapter 41A legalizes short-term rentals but imposes a number of restrictions, discussed below. San Francisco’s Planning Department will enforce the new law.
Law Adds Restrictions, Doesn't Override CC&Rs
The new law does not change CC&Rs’ current restrictions; it imposes additional restrictions. Your association should send notices to its homeowners to familiarize them with the new law’s important requirements, including the following:
- The 90 Day Rule. The law limits rentals where the host is not present in the unit to a maximum of 90 days per year. Violators who continue to rent out their apartments beyond 90 days would be subject to a $416-a-day fine for the first offense and $1,000 a day thereafter.
- Only Primary Residence May be Rented. Permanent residents (those residing in their units for at least 275 days per year) are allowed to rent out their primary residences, but not locations in which they don’t live or second or vacation homes. If you are a new resident, you must have occupied this specific unit for at least 60 consecutive days prior to your application. If you own a multi-unit building, you may only register the specific residential unit in which you reside.
- Registry and Permits. Hosts must register and obtain a permit from the planning department to engage in short-term renting and pay a $250 fee every two years. Hosts will also need to obtain a city business license. Short-term rentals will be listed and tracked by the city in a registry. This information will not be available to the public unless a public records request is filed.
- Insurance Requirement. Hosts must be covered by liability insurance with at least $500,000 in coverage. Alternatively, they may offer their units for rent through a hosting service that offers at least this much coverage.
- Hotel Taxes Must Be Paid. The 14% San Francisco hotel tax must be collected and paid to the city. Airbnb has already started collecting and remitting such taxes for its San Francisco hosts.
Your association should also send reminders to homeowners regarding the CC&Rs’ rental restrictions. Typically, CC&Rs prohibit rentals of less than 30 days and require the Owner/landlord to provide certain tenant information to the association. The reminder should also advise homeowners that they will be subject to a fine, suspension of membership privileges, and/or a lawsuit for injunctive relief and attorney’s fees incurred to enforce the rental restrictions in the CC&Rs if they violate these provisions. If you need assistance in preparing reminders to the homeowners or summarizing the Airbnb law to them, please contact an attorney.
For more information, visit the City of San Francisco's page for information about short-term rentals and registration: http://sf-planning.org/office-short-term-rental-registry-faqs.
Hanh T. Pham, Esq. is an Associate with The Law Offices of Ann Rankin in Oakland, California, serving common interest developments.