Editorial: The row over Airbnb and ‘home sharing’

By Omar Passons

Many people in communities like mine in North Park have been following San Diego’s struggles with Airbnb over the past several months. Airbnb is an Internet company that allows regular people (or business owners) to rent rooms or their homes for as long or as little as they want, and it allows you to screen guests or properties based on the reviews of others.

The stakes were raised during a City Council hearing in April when the city took the position that its commercial bed and breakfast law applies to everything from home swaps and Airbnb to foreign exchange students and occasionally renting out your home when you go on vacation.

I am a land use attorney and I represented a woman who was fined thousands of dollars for using Airbnb to let people stay in one to two bedrooms of her home for less than 30 days. As an attorney, I care about what the law actually says and about how it is applied. As a member of the San Diego community, I care about the policies involved and the tension between a person’s right to legally use their home to supplement income versus some neighbors’ views that residential areas should not have this type of activity.

On Aug. 12, 2015, the city of San Diego released its draft Short Term Vacation Rental/Home Sharing law, and I decided to write this piece so that people would understand what’s going on. I have many neighborhood friends and colleagues around the city who want to know what is happening, what the rules are and what the proposed changes actually mean.

How will “home sharing” be defined?

One part of the new law will define boarders, lodgers and “home sharing.” Let’s not quibble; “sharing” involves money. Something can be commerce without being a “business.” If you are empty-nesters who occasionally rent your place when you go out of town, it’s not a business, but it is commerce. Rules are needed.

Two key points of the new definition:

• The “shall remain present” language in the law, if it sticks, eliminates the option of renting your own home if you take a short vacation.
• The law does not define what it means to “reside” some place, but the city says this informally means at least half the year.

What are the issues with this ‘home-sharing’ definition?

If you rent out your place — to anyone — while on a short vacation, you will be breaking the law without the $10,000 permit. Seems excessive.

You can only use a maximum of 25 percent of your dwelling unit. This will severely limit families with smaller dwelling units. As written, it benefits the wealthier, newer parts of San Diego over the less wealthy, older parts like Uptown and Mid-City where the houses and lots are often smaller.

The requirement for one off-street parking space per two visitors also disproportionately harms older, poorer communities who will have the most trouble meeting this requirement. As a result, the people who could most benefit will be most restricted.

The no “multiple agreements” requirement would eliminate one of the most useful and flexible aspects of these services. This section means if you rent to more than one person who don’t know each other in the same dwelling unit that you are subject to the commercial bed and breakfast law (and the $5,000-$10,000 permit) not the home-sharing law. Example: This means that you will NOT be able to just list your home on Airbnb or your couches on couchsurfing.com and have a guy from Sweden and one from Brooklyn stay at the same time without first getting the $5,000-$10,000 permit.

The new proposed rules — at least for now — do not tell you how to treat something like a granny flat or rear apartment. Since these are abundant throughout Mid-City and they are a convenient way to supplement income, it will be important to keep an eye out for those rules, too.

Proposed rules for ‘short term vacation rental’ 

The new proposed rules for “short term vacation rental” (STVR) do begin to address when a person’s entire investment property (think second home or beach rental) can be used for stays of less than 30 days. These proposed rules seem to address many of the difficult issues like noise and responsiveness of the property owner. They do not address whether owners must respond to all complaints or just those regarding illegal behavior. The other big issue is the requirement for “exclusive transient use,” which seems to suggest that you can’t live in your home part of the year and make it a short-term vacation rental part of the year.

The process of resolving how short rental stays will be permitted in our communities will continue to unfold over the next several months. The easiest ways to have your voice heard are to attend your local Community Planning Group meeting or to contact your elected representative.

—Omar Passons is a senior construction and land use attorney at Stutz Artiano Shinoff & Holtz, and a longtime North Park resident. This op-ed is adapted from “Understanding short term rentals in San Diego” (part IV), a series on his personal blog at understandingSD.com.

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