The Goldwater Institute and the Liberty Justice Center filed a brief in the Nevada Supreme Court yesterday in support of property owners challenging the constitutionality of Clark County’s outrageously intrusive regulations of home-sharing. Those regulations force people who rent out their homes for under 30 days to video-record people going in and out of the house, and to turn those recordings over to the government upon demand, and without a warrant. They also force property owners to turn over financial records to the government—again without a warrant—and to allow government inspectors into the homes to search bedrooms, bathrooms, and other locations…once more, without a warrant.
That’s unconstitutional. The U.S. and Nevada Supreme Courts have repeatedly made clear that renters, hotel guests, and even people staying in a tent overnight have the same constitutional rights against warrantless searches as any homeowner. In a 2015 case called Patel, for example, the U.S. Supreme Court struck down a Los Angeles ordinance that forced hotels to hand over their guest registers to the police upon demand. And in 1989, the Nevada Supreme Court struck down a law that forced massage parlors to turn over information about their customers to the police.
Surely if it violates privacy rights to impose such a demand on massage parlors, a law that applies to ordinary houses is even worse.
But the Clark County ordinance imposes even more extreme limits than these. It actually prohibits “parties,” which it defines as “any gathering of more than 10 people, or more than two people per bedroom in the house, whichever is less.” In other words, if you rent a house that has two bedrooms, you’re only allowed to have four people at your Thanksgiving. It doesn’t matter whether you’re making noise or not, or whether you’ve got too many cars parked in the street or not—the county is going to tell you what kinds of social gatherings you’re allowed to host.
And none of these restrictions apply to anyone who rents a property for more than 30 days—as if the Constitution had some kind of time limit. Nor does the “party” restriction apply to owners who hold gatherings “unrelated” to short-term rentals. So if you hold a Christmas dinner with five people, that’s an illegal nuisance—if the house is rented for 29 days—but if you hold exactly the same dinner in exactly the same house, and you own it, or if it’s rented for 31 days, that’s OK.
These arbitrary and meddlesome restrictions aren’t just obnoxious—they also violate one of the oldest principles in the law: the principle that your home is your castle. Constitutional protections for property rights and privacy make no distinction between renters and owners, or between people who rent for two weeks or two months or two years.
Obviously, the government has a legitimate role to play in prohibiting nuisances such as loud noises or traffic problems in communities. But the way to do that is to target the nuisances—to punish people who create loud noises or traffic problems in communities—not to dictate to people what they can do in their own homes, or to force them to act as the government’s spy by recording people’s information and handing it over to the government without a warrant, or to force them to submit to searches of their private spaces. Conscientious law enforcement officers themselves have made clear that they would rather combat actual crimes and nuisances than spend their time patrolling innocent people who happen to be using private property in the ways they see fit.
As we’ve noted before, home-sharing is a traditional, long-standing element of private property rights. Indeed, home-sharing is a “residential use” of property. It can’t be singled out as an activity devoid of constitutional protections. It’s time for Clark County officials to respect the basic rights of homeowners—and house-renters.
You can read the brief here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.
