The Goldwater Institute today filed a brief in the Fifth Circuit Court of Appeals urging the judges to reconsider a ruling that says property owners have no right to rent out their property on a short-term basis. Actually, as our brief shows, the right to own something necessarily includes the right to decide how to use that thing, including the right to rent it out to others—unless, of course, one uses property in a way that harms others.
That’s probably the most basic principle of individual rights, but it’s one federal judges disregarded in this case. They held that the right of property ownership simply doesn’t include the right to rent out property on a short-term basis, and consequently that the government can ban it even if there’s no indication that anyone’s being harmed. But by that logic, the government has an unlimited power to restrict your right to use your property whenever it simply feels like it.
The case involves an ordinance in New Braunfels, Texas, which bans homeowners from renting out their property on a short-term basis. The owners, represented by our friends at the Texas Public Policy Foundation, sued, arguing that this violated their property rights. But the Fifth Circuit said that the plaintiffs couldn’t even come to court because they have no such right to begin with. “The protected property right claimed here,” said that judges, “does not [exist].” In other words, it’s not a question of whether the government has offered a legitimate justification of eliminating this aspect of a homeowner’s property rights—rather, there simply is no such right, and therefore the government can eliminate it at will.
In our brief—written by American Freedom Network member Sam Spiegelman of Spiegelman Law Group—we point out that this is simply not true. The right to own property inherently includes the right to use that property, at least up to the point where one causes some sort of nuisance or interferes with the rights of others. That’s always been how property rights have been understood, for as long as the law has recognized such rights.
As the Goldwater Institute has argued for years, home-sharing is a traditional and long-accepted use of private property. It’s been practiced for centuries, and during the days of segregation it was often the only alternative for people who were legally barred from staying overnight in hotels. And the right to own something necessarily means the right to decide how to use it—including the right to rent it out. As our brief puts it, “property as the right to exclude and its correlative right to include (read: to share) … presuppose[s] a right to use one’s property however one wishes”—at least until there’s some reason to think that a person’s property use is harming others.
Besides, under the court’s logic, where does one draw the line between “short” and “long” term renting? The ruling never explains why the right to rent out property for “short” periods is somehow non-existent, whereas the right to rent out property for “long” periods is. In fact, it would seem that if you have no right to rent your property for a single day, you can hardly have a right to rent it out for 365 days.
Our brief urges the entire Fifth Circuit to review the case and to recognize the longstanding principle that property rights include the right to use property as one chooses—including the right to rent it out.
The brief is just the latest in our longstanding work defending the rights of home-sharers across the country. That work includes our pioneering legislation in Arizona that bars the government from banning home-sharing—while, of course, allowing the government to crack down on nuisances or on people who use their property in ways that harm others. That principle isn’t just common sense—it is, and has always been, the law.
You can read our brief here, and learn more about our home-sharing work here.
Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation and holds the Duncan Chair in Constitutional Government.
