It appears to us the purpose of the lawsuit is a desperate attempt to delay the enforcement actions by the City against illegal vacation rental owners and the unscrupulous Realtors who manage them.
The lawsuit is actually a “Motion” for a temporary restraining order (TRO) to delay the City from enacting the new enforcement ordinances (19-18 Bill 89) against illegal vacation rentals (which have been illegal since 1987). We believe there is no actual legal “complaint” against the ordinance and a Judge shouldn’t entertain this motion unless it was connected to an actual challenge to the ordinance. We don’t see any valid cause for action.
Overall, HVROA has little going for them and they use a lot of attorney “double-talk” to try to make a case.
A major portion of the suit claims the new ordinances and/or DPP regulations cause legal long-term rentals (30-days plus) to be “illegal” if tenants are not physically on the property for 30 consecutive days. This is absolutely ridiculous. No Honolulu ordinances or DPP Administrative regulations make legal long-term rental illegal. The HVROA lawsuit cites the following Q&A section of the DPP’s website:
Question: To comply with the law, people will be advertising only 30-day stays. But, in follow-up conversations, they will offer daily and weekly stays. How will you know who’s doing this to skirt the law?
Answer: Advertising is a new violation, but actually staying in a home for less than 30 days is still a violation. The DPP will continue to monitor for occupancy violations. Also, just as a caution to homeowners, Governor David Ige recently signed House Bill No. 807 (Act 114), which makes it a misdemeanor offense to knowingly make a false statement to a county inspector.
Obviously, the DPP’s Q&A’s are not the verbiage of the Land-Use Ordinances and are also not DPP’s administrative regulations. Even HVROA lawyer, Greg Kugle, admitted the new ordinance appears to allow 30-day rentals according to a Star-Advertiser article. It’s pretty clear the Q&A is only meant to be informative and help explain the new ordinance and indicate how certain situations would be affected. The average person would understand the DPP would consider the length of stay of a visitor as evidence of a less than a 30-day rental, but additional evidence may be necessary to issue a violation (short-term rental ads, confession by the guests, etc…). In our opinion, HVROA claims that a Q&A on a website is statutory in nature is rather idiotic!
The DPP and Corporate Counsel has repeatedly stated to the public that tenants of a long-term rental are not required to be physically on a property for 30 days or longer in order to not be considered a short-term rental, but the tenants must be given full possession and tenant rights to the property at an agreed-upon lump sum for at least 30 days. They can come and go as they please for at least 30 days and there can not be any additional rental or rental fees based upon the length of stay for at least a month.
Sadly, we have observed numerous illegal vacation rental owners and unscrupulous Realtors offer and create fraudulent 30-day contracts or other unlawful schemes to hide a less than a 30-day rental. If the evidence proves the contracts are fraudulent and/or a property owner/agent knowingly offers or provides a short-term rental, then a notice of violation should be issued.
The motion for a TRO should be denied by the Court and illegal vacation rental owners should simply stop breaking the law or face significant fines for their actions!