October 17, 2019
By Christina Sandefur
Across the country, people
are opening their homes to overnight guests to help pay their mortgages,
restore properties, or earn extra money for their families. The practice is
especially popular in tourist destinations, where families often choose to stay
in homes rather than hotels to save money and “live like a local.”
Unfortunately, the city of
Sandusky, Ohio—despite being a world-renowned tourist destination and home to Cedar Point, one of the world’s largest roller-coaster parks—has
chosen not to respect the rights of homeowners to peacefully rent their homes,
but rather to impose burdensome, confusing, and unconstitutional rules that
deprive homeowners of these rights.
Last week, along with local
counsel Christopher Holecek, we filed a brief in a lawsuit
challenging Sandusky’s anti-home-sharing laws, arguing that Ohio cities should
not be allowed to enact vague, unpredictable restrictions on homeowners’ use of
their property.
Sandusky’s anti-home-sharing
ordinances are so vague that they fail to give fair notice of what homeowners
may and may not lawfully do—and it authorizes arbitrary and discriminatory
enforcement. For example, an occupancy is legal so long as it lasts at least
one year, but it is illegal if the parties’ intention is for the
occupancy to be “temporary.” A renter might very well sign a year-long lease
but intend for the rental to be “temporary,” and move on after one year. It’s
unclear whether this occupancy would be legal or illegal.
Under another ordinance, an
occupancy is illegal if it’s for fewer than 30 consecutive calendar days. So if
a homeowner spends a month away on business, and hires a house-sitter or a
pet-sitter to remain in the home during some of that time—or even allows a
friend to live there for free during her absence to keep an eye on the
property—she would be violating the law. These anti-home-sharing laws are
confusing and lead to absurd and inconsistent results.
Officials in other cities
have adopted similarly incoherent anti-home-sharing ordinances, which has
resulted in arbitrary and unpredictable enforcement. For example, Honolulu prohibits
rentals for less than 30 days, which some city officials have argued means guests must physically occupy the rented
property every moment of their stay—which must be more than thirty days.
At other times, officials have agreed that guests can come and go from the
home, so long as the home is rented exclusively to those guests for at least
thirty days. This makes it impossible for homeowners to know whether or not
they are in violation.
Vague legal definitions or
enforcement standards mean that the punishable act is in the eye of the
beholder, which empowers government officials to selectively enforce the law
and subject citizens to bureaucrats’ whims. The consequence is often to exclude “undesirables,” or by picking and choosing whom to enforce the
prohibitions against, in an ad hoc and often biased fashion. Failing to abide
by objective, predictable standards breeds uncertainty and paves the way for
special interest groups—such as competitor hotels or meddlesome neighbors—to hijack the enforcement process.
Ohio has always considered property
rights to be fundamental.
As such, courts should ensure that cities enact clear property rules so that
homeowners know what behavior is lawful, and officials can enforce the rules
consistently and fairly. Cities like Sandusky can regulate effectively—and
constitutionally—by enacting and enforcing clear rules about noise, traffic, and pollution, regardless of whether those problems are caused by
an overnight guest or the homeowner himself.
Christina
Sandefur is the Executive Vice President at the Goldwater
Institute.
