A vacation rental needs to be a dwelling unit, and a dwelling unit needs to have a sleeping area, a kitchen, and a bathroom all under the same roof.
So, consequently, cities can forbid homeowners from marketing a structure that’s less than that as a vacation rental, even if such structures are otherwise allowed under city ordinances. And in doing so, cities would not run afoul of the state laws that otherwise tightly restrict how cities can regulate vacation rentals.
That’s the crux of an advisory legal opinion issued Wednesday by Florida Attorney General Pam Bondi. Her analysis potentially provides cities with a new albeit narrow opportunity to limit vacation rentals. That would be a major change for cities that largely lost new authority over vacation rentals in 2011 when the state essentially banned new municipal laws regarding vacation rental properties.
With her advisory, Bondi responded to an inquiry from Mexico Beach. That city is looking into whether it needs any new ordinances to address homeowners who have, or are considering creating, backyard sleeping facilities, in some cases converting stand-alone garages, bath houses, or some other structures into places where someone could sleep, away from the main house.
In a request the city made last summer for a legal opinion, Mexico Beach wanted to know: can we allow such places to exist, without letting them be rented out as vacation rentals?
Yes, Bondi responded Wednesday.
“This is a good result for the city,” Mexico Beach City Attorney Nicholas Beninate said Wednesday.
It was not clear Wednesday how widespread the ramifications might be statewide. A representative of one of the biggest vacation rental marketers in the world, VRBO/HomeAway, suggested the decision is very narrow.
“Given the fact that prior to Hurricane Michael the City of Mexico Beach was very dependent on the tourism revenue brought in by short term rentals, I applaud Mexico Beach for actually being deliberate and thoughtful in their approach to local vacation rental regulation,” Jennifer Green, president of Liberty Partners of Tallahassee, which represents VRBO/HomeAway, stated in a response. “However, I don’t think anyone should read more into the AG’s opinion as it appears to be a very specific response to two very specific questions about one specific city.”
One of the things that Bondi’s legal opinion does is define what constitutes a dwelling unit under state laws governing vacation rentals.
According to her advisory, while vacation rentals are defined in Florida statutes as dwelling units, the definition of “dwelling units” is not clearly spelled out in those statutes, nor in Mexico Beach city ordinances. Based on definitions elsewhere and limited case law she cited, Bondi concluded that “a dwelling is a place where people could live semi-permanently, rather than a room that people stay in temporarily. A ‘house or dwelling unit’ is complete unto itself as a habitation and thus is suited to be rented out to guests as a vacation rental, unlike sleeping quarters.
“Separate sleeping quarters, standing alone, may enhance the value of the principal dwelling to either a homeowner or a renter by increasing the occupancy capacity of the principal dwelling, but without more, such as a permanent area for food preparation, sleeping quarters are not a ‘dwelling unit’ sufficient to constitute an independent ‘vacation rental’,” Bondi’s advisory continued.
“It is therefore my opinion,” Bondi advised, “that the City of Mexico Beach may enact an ordinance allowing an accessory structure to be used as sleeping quarters but not rented out independently,” and could do so without violating the state’s ban on municipal regulations of vacation rentals.