HomeMy WebLinkAbout04-21-17 Public Comment -M. Brown -ShortTermRentalsApril 21, 2017
Mr. Mayor, Commissioners and Bozeman Staff,
I believe that at least 7 of the State Statutes may be in conflict with the proposed
Bozeman Short Term Regulation Plan. Here is why.
1) First, there is an exemption of owner occupied home or condominium under 50-
51-102 MCA, which is the Health and Safety Code that governs Hotels and Motels.
This is the statute that the City believes governs short-term rentals. There is no definition
in MCA of the number of days that a residence should be occupied by an owner, although
Federal tax code says that it can be any number of days for two homes. State statutes
specifically exclude owner occupied homes and condominiums in the definition under the
Hotel and Motel Safety Act:
50-51-102. Definitions. Unless the context requires otherwise, in this
chapter, the following definitions apply:
…
(12) "Tourist home" means a private home or condominium that is not
occupied by an owner or manager and that is rented, leased, or furnished in its
entirety to transient guests on a daily or weekly basis.
(13) “Transient guest” means a guest for only a brief stay, such as the traveling
public.
2) Therefore owner-occupied homes and condominiums are protected under the
MCA Residential Landlord Tenant Act Title 70, Chapters 24 & 25.
70-24-107. Territorial application. This chapter applies to, regulates, and
determines rights, obligations, and remedies under a rental agreement,
wherever made, for a dwelling unit located within this state.
3) The L/T Act defines many terms that are referred to by the City in their proposed
Short Term Rental plan. They are underlined below. The City has ignored these
definitions and used definitions found outside the Statutes and the L/T Act. For example
the term “dwelling unit” is in direct conflict with the City definition which used the FHA
condo definition out of context that states an owner needs to occupy a condo for 50% of
the year.:
70-24-103. General definitions. Subject to additional definitions contained in
subsequent sections and unless the context otherwise requires, in this chapter the
following definitions apply:
…
(4) "Dwelling unit" means a structure or the part of a structure that is used as a
home, residence, or sleeping place by a person who maintains a household or by
two or more persons who maintain a common household. Dwelling unit, in the
case of a person who rents space in a mobile home park and rents the mobile
home, means the mobile home itself.
…
(6) "Guest" means a person staying with a tenant for a temporary period of time
as defined in the rental agreement or, if not defined in the rental agreement, for a
period of time no more than 7 days unless the tenant has received the landlord's
written consent to a longer period of time.
(7) "Landlord" means:
(a) the owner, lessor, or sublessor of the dwelling unit or the building of which
it is a part; or
(b) a manager of the premises who fails to disclose the managerial position.
…
(9) "Owner" means one or more persons, jointly or severally, in whom is vested
all or part of:
(a) the legal title to property; or
(b) the beneficial ownership and a right to present use and enjoyment of the
premises, including a mortgagee in possession.
(10) "Person" includes an individual or organization.
(11) "Premises" means a dwelling unit and the structure of which it is a part, the
facilities and appurtenances in the structure, and the grounds, areas, and facilities
held out for the use of tenants generally or promised for the use of a tenant.
(12) "Rent" means all payments to be made to the landlord under the rental
agreement.
(13) "Rental agreement" means all agreements, written or oral, and valid rules
adopted under 70-24-311 embodying the terms and conditions concerning the use
and occupancy of a dwelling unit and premises.
(14) "Roomer" means a person occupying a dwelling unit that does not include a
toilet, a bathtub or a shower, a refrigerator, a stove, or a kitchen sink, all of which
are provided by the landlord and one or more of which are used in common by
occupants in the structure.
(15) "Single-family residence" means a structure maintained and used as a single
dwelling unit. A dwelling unit that shares one or more walls with another
dwelling unit is a single-family residence if it has direct access to a street or
thoroughfare and does not share heating facilities, hot water equipment, or any
other essential facility or service with another dwelling unit.
(16) "Tenant" means:
(a) a person entitled under a rental agreement to occupy a dwelling unit to the
exclusion of others; or
(b) a person who, with the written approval of the landlord and pursuant to the
rental agreement, has a sublease agreement with the person who is entitled to
occupy the dwelling unit under the rental agreement.
(17) "Unauthorized person" means a person, other than a tenant or a guest, who is
trespassing in violation of 45-6-203.
4) The Landlord Tenant Act specifically excludes the following (see underline below),
which includes hotels and motels (which are defined in 50-51-102 as mentioned at the
start of this letter):
70-24-104. Exclusions from application of chapter. Unless created to avoid the
application of this chapter, the following arrangements are not governed by this
chapter:
(1) residence at a public or private institution if incidental to detention or the
provision of medical, geriatric, educational, counseling, religious, or similar
service, including all housing provided by the Montana university system and
other postsecondary institutions; (2) occupancy under a contract of sale of a
dwelling unit or the property of which it is a part if the occupant is the purchaser
or a person who succeeds to the purchaser's interest; (3) occupancy by a
member of a fraternal or social organization in the portion of a structure operated
for the benefit of the organization; (4) transient occupancy in a hotel or motel;
(5) occupancy by an owner of a condominium unit or a holder of a
proprietary lease in a cooperative; (6) occupancy under a rental agreement
covering premises used by the occupant primarily for commercial or agricultural
purposes; (7) occupancy by an employee of a landlord whose right to
occupancy is conditional upon employment in and about the premises; and
(8) occupancy outside a municipality under a rental agreement that includes
hunting, fishing, or agricultural privileges, along with the use of the dwelling unit.
5) The Landlord Tenant Act is not limited to longer-term rentals. It defines the terms
and length of rentals which includes rentals of any length if there is an agreement, and
week-to-week or month-to-month if there is no agreement:
70-24-201. Rental agreement terms and conditions.
(1) A landlord and a tenant may include in a rental agreement terms and
conditions not prohibited by this chapter or other rule or law, including rent, term
of the agreement, and other provisions governing the rights and obligations of the
parties.
(2) Unless the rental agreement provides otherwise:
(a) the tenant shall pay as rent the fair rental value for the use and occupancy of
the dwelling unit as determined by the landlord;
(b) rent is payable at the landlord's address;
(c) periodic rent is payable at the beginning of a term of a month or less and
otherwise in equal monthly installments at the beginning of each month;
(d) rent is uniformly apportionable from day to day; and
(e) the tenancy is week to week in the case of a roomer who pays weekly rent
and in all other cases month to month.
(3) Rent is payable without demand or notice at the time and place agreed upon
by the parties or provided for by subsection (2) of this section.
6) 30 days for taxation purposes. The only time the number of days (30) are
mentioned is in the lodging facility use tax code which may apply to both the Landlord
Tenant Act and the Health and Safety Act covering Hotels and Motels. The term
“facility” is defined differently in both of the acts. Specifically “facility” in the Hotel
Motel Safety Act as mentioned earlier excludes owner occupied homes and condos.
Facility is defined as part of a residence in the L/T Act.
15-65-101. Definitions. For purposes of this part, the following definitions
apply:
(1) "Accommodation charge" means the fee charged by the owner or operator of
a facility for use of the facility for lodging, including bath house facilities, but
excluding charges for meals, transportation, entertainment, or any other similar
charges.
(2) (a) "Campground" means a place, publicly or privately owned, used for
public camping where persons may camp, secure tents, or park individual
recreational vehicles for camping and sleeping purposes.
(b) The term does not include that portion of a trailer court, trailer park, or
mobile home park intended for occupancy by trailers or mobile homes for resident
dwelling purposes for periods of 30 consecutive days or more.
(3) "Council" means the tourism advisory council established in 2-15-1816.
(4) (a) "Facility" means a building containing individual sleeping rooms or
suites, providing overnight lodging facilities for periods of less than 30 days to the
general public for compensation. The term includes a facility represented to the
public as a hotel, motel, campground, resort, dormitory, condominium inn, dude
ranch, guest ranch, hostel, public lodginghouse, or bed and breakfast facility.
(b) The term does not include any health care facility, as defined in 50-5-101, or
any facility owned by a corporation organized under Title 35, chapter 2 or 3, that
is used primarily by persons under the age of 18 years for camping purposes, any
hotel, motel, hostel, public lodginghouse, or bed and breakfast facility whose
average daily accommodation charge for single occupancy does not exceed 60%
of the amount authorized under 2-18-501 for the actual cost of lodging for travel
within the state of Montana, or any other facility that is rented solely on a monthly
basis or for a period of 30 days or more.
(5) "Nonprofit convention and visitors bureau" means a nonprofit corporation
organized under Montana law and recognized by a majority of the governing body
in the city, consolidated city-county, resort area, or resort area district in which
the bureau is located.
(6) "Regional nonprofit tourism corporation" means a nonprofit corporation
organized under Montana law and recognized by the council as the entity for
promoting tourism within one of several regions established by executive order of
the governor.
(7) "Resort area" means an area established pursuant to 7-6-1508.
(8) "Resort area district" has the meaning provided in 7-6-1501.
7) Local Government is prohibited licensing landlords in 7-1-111(13), MCA.
7-1-111. Powers denied. A local government unit with self-government
powers is prohibited from exercising the following:
…
(13) any power that applies to or affects landlords, as defined in 70-24-103,
when that power is intended to license landlords or to regulate their
activities with regard to tenants beyond what is provided in Title 70,
chapters 24 and 25. This subsection is not intended to restrict a local
government's ability to require landlords to comply with ordinances or
provisions that are applicable to all other businesses or residences within the
local government's jurisdiction.
8) There may also be conflict with the new amendments in International Building
Codes in the ICC. They appear to allow hotel and motel transient housing in R-1
zones. This would apply to non-owner occupied short term rentals.
CONCLUSION
The City has been working on this document for a long time, and I have only had one day
to review it and my attorney is not available. When I met with staff yesterday, they even
expressed that the Commission might want to consider Type 1 and Type 2 as both being
owner-occupied and therefore not regulated.
My stomach turns with the idea that I have to give up my constitutional right to privacy
by the City publishing for anyone to see that I sometimes rent my home along with my
contact information – just because sometimes I rent for under 30 days to a similar family
that I would rent to for over 30 days. Are they going to have such a registry for everyone
in the city? And then are they going to disallow any rental of a home or even a hotel if
someone complains that it is a nuisance? And will we all be subject to a $500 fine and
possible jail time?
While I applaud the City in trying to find an equitable solution, I don’t see how this
works within the confines of the State Statutes. I don’t think there are any easy fixes to
the proposed plan but you are welcome to call me to discuss ideas.
Sincerely,
Marilee Brown
3971 Bosal St.
Bozeman, MT 59718
406-579-5447