New Decision: Airbnb (City of Miami v. Airbnb)

Michael J. Gelfand 12/11/2018

Wednesday, the latest salvo in the short term leasing wars was issued. City of Miami v. Airbnb, Inc., Case No. 3D17-1213 (Fla. 3d DCA, December 5, 2018).

Airbnb and property owners sued the City of Miami for declaratory and injunctive relief claiming that the city’s “vacation rental ban” was by preempted by state law and the city’s enforcement was retaliatory. Airbnb asserted that the city’s code was preempted by § 509.032(7)(b) Fla. Stat. (2016). Further, that comments made at a city commission meeting stating that the city was “now on notice” of those who spoke out” was retaliatory.

The appellate court found that there were a number of issues raised within the preemption argument. First, preemption would not bar enforcement of the code because it was undisputed that the code was “identical in its material provisions” to the code existing before the statute’s adoption. The statute specifically stated that it “does not apply to any local law, ordinance or regulation adopted on or before June 1, 2011.”

On the other hand, the city’s “zoning interpretation” adopted in 2015, after the statute, is subject to preemption. The Interpretation sought to address the codes definition of the term “residential” as “land use functions predominately of permanent housing.” Because “predominately” is not “exclusive” then, significantly, “a mere incidental use for a short-term or vacation rental may not violate” the code. Thus, if the interpretation seeks to ban all short-term rentals or otherwise extends the impact of the code, the interpretations would be preempted and not enforceable. In this regard, the codes terms, prohibiting “bed and breakfasts,” “inn,” and “hotel” does not in and of itself prohibit short term rentals of a home, particularly because the codes definition of “lodging” is restrictive including that it be furnished with a minimum of 200 square feet the court recognized that under the circumstances, and in light of the limited record, a case by case fact intensive trial court inquiry may be required.

Separately, the injunction prohibiting name and address submission from speakers and requiring speakers to be notified they can speak unanonymously was vacated. Assuming that the requirements were “chilling” free speech, the injunction was overbroad. The appellate court held that there was a legitimate governmental interest at public hearings to have names and addresses and able to call speakers to speak, determine whether a speaker is a resident who would be impacted. The court also made a sweeping statement that “most public meetings do not offer the opportunity for governmental misuse of enforcement priorities….” Nevertheless, on remand a more narrowly tailored injunction might be appropriate.

A strong concurring and descending opinion would have remanded the overbroad vacation rental injunction for modification.

This decision reinforces the need for many associations to amend their restrictions to utilize specific language addressing Airbnb type arrangements if the community desires limitations. It is of interest that Airbnb’s co-plaintiffs are referred to as “renting” their properties. Apparently the label of “license” was abandoned, at least for these proceedings. Implicit in the decision is that leasing for a non-commercial use, such as a tourist lodging, falls within a residential use which would trigger the requirement under many covenants for an amendment if the short-term rentals are to be regulated.

Michael J. Gelfand

Past Chair

Real Property, Probate and Trust Law Section

of The Florida Bar

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Note: This article is not legal advice. Statements and comments made are not those of The Florida Bar or the RPPTL Section

© 2018 Michael J. Gelfand

Michael J. Gelfand

Florida Bar Board Certified:

Real Estate Attorney

Condominium & Planned Development Law

Florida Supreme Court Certified Mediator:

Civil Circuit Court & Civil County Court

Fellow, American College of Real Estate Attorneys

The only thing necessary for the triumph of evil is for good men to do nothing.

- Edmund Burke


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