Section 1-A(2) - Prohibition on STRs and Leasing of Individual Rooms

Section 1-A(2) is the meat and bones of the ban on Short Term Rentals (STRs). It states that no STRs or transient tenants may be accommodated in a Residence and prohibits advertising on short-term rental websites. As mentioned previously, it also limits all leases of the entire residence to an initial term of not less than 6 months. Many neighbors are in favor of a ban on STRs, and if this restriction had remained focused on these three points, it would have been decided by majority will. Unfortunately, however, the wording not only went beyond what was needed to ban STRs, it creates extreme confusion throughout the document regarding the term "Leasing".

This restriction states that "Owners are STRICTLY prohibited from leasing individual rooms in the Residence." The Board stated in its second notice to the homeowners that roommates were permitted under the terms of the Proposed Deed Restrictions. When pressed about how that could be possible given the clear prohibition on leasing rooms, homeowners were told they could have roommates, they just couldn't enter into a lease with a roommate. In other words, if you decide to have a roommate for whatever reason, you are prohibited from legally protecting yourself in that contractual agreement. To say homeowners have the right to do something but not the right to legally protect themselves while doing it seems absurd. Do you really have the right to do it if you don't have the right to do it the RIGHT way? We encourage those of you who have or might find yourself in a situation where you need a roommate to defray expenses, please call an attorney and ask their take on this. You might have to wait for them to finish laughing to hear their answer.

But there's another issue with this room-leasing prohibition. When asked at the third information meeting how you could "lease" an individual room when "Leasing" is defined as giving up occupancy of the entire home, homeowners were told that this reference to leasing begins with a lower-case letter and therefore is not the same as the defined term "Leasing" (capital 'L') in Section 1-A(1). If that's the case, then little-l-leasing of an individual room is now an undefined term.

Where "Leasing" the entire premises is an exchange of the entire residence for fee, service, gratuity, or emolument (1-A(1)), a court could very well conclude that the same exchange definition would apply to "leasing" an individual room. And now we are right back to the Board having the power to prohibit live-in caregivers, roommates, and other arrangements where you permit people to stay in your home.

But here's the really bad part. The capital-letter defined-term "Leasing" NEVER again appears in the entire document. Every other non-title reference to "leasing" is a lower-case leasing, including the sentence in 1-A(2) that states a Residence may be leased (lower-case) only in its entirety. If "Leasing" is defined as giving up exclusive occupancy of the entire residence, then prohibiting the "leasing" of an individual room makes no sense. If, as the Board claims, "leasing" is an undefined term (lower case), then every single reference using the lower-case term "leasing" refers to leasing a single room. This is terrible drafting and opens up a quagmire of interpretation issues.

Poorly drafted contracts and deed restrictions are manna for the courts and fodder for the attorneys, all of which will be paid for by us as homeowners.