LENOX -- It’s perfectly legal for homeowners here to rent out their entire houses or apartments to vacationers for one month or less, in addition to lengthier periods, according to a just-issued legal opinion from town counsel.
The Select Board had asked Kopelman and Paige of Boston for guidance after 17 lodging proprietors led by Phil Halpern, co-owner of Brook Farm Inn, petitioned the board last October to address the issue of short-term house rentals.
In an appearance before the selectmen, Halpern argued that owners were violating town bylaws that he and other innkeepers interpreted as not allowing rentals of houses, apartments and condos for less than 30 days.
The lodging proprietors had voiced deep concern over the practice, which has been widespread in town for decades, because they contended it was cutting into their business. Internet sites that cater to vacationers seeking use of a house for brief periods have created a booming market for homeowners seeking additional income.
In a four-page opinion issued late Wednesday, attorney Joel Bard, the president of Kopelman and Paige, wrote that his analysis of town bylaws found no restrictions on either the long- or short-term rental of entire dwellings, including apartments, townhouses and one or two-family homes.
Noting sections of the town bylaw regulating the rental of individual rooms in a home during summer and fall, he stated that "it is notable that these provisions pertain to the ‘renting of rooms’ and not to the rental of entire dwellings."
Those regulations "cannot be read as imposing durational limitations on the rental of entire buildings," Bard added.
As his legal opinion states, "there should be no town-initiated zoning enforcement against owners of properties who periodically rent their dwellings" for less than 30 days.
Asked for reaction, Halpern told The Eagle that the opinion "looks like it’s researched very well. I had been anticipating a vague response, but it’s fairly clear-cut."
He added that the innkeepers will meet on Feb. 3 to discuss their options prior to the Select Board’s Feb. 5 meeting. ‘It behooves us to make an appearance to express our opinions," Halpern said.
According to Select Board Chairman David Roche, the opinion "does clarify a lot of definitions on the types of homes and rentals. This what we were waiting for, it does answer a lot of questions."
Roche welcomed a continuing conversation with the innkeepers at the next board meeting.
"This gives us a basis for forming a policy," he added. "In good conscience, we have to use this as a basis for whatever we ultimately decide."
Gateways Inn co-owner Eiran Gazit expressed disappointment with the legal opinion.
"The Internet was a game-changer," he declared in an e-mail. "When people rent properties for just a weekend, the problem is that the innkeepers lose money, and as a result the town loses money. This does not make sense."
Pointing out that renters of houses are not charged lodging or meals taxes, Gazit noted that as an innkeeper, "I have to pay taxes on the property as a business even though most of the time the inn is empty. I think to even things out, inn owners should be charged tax only for those days that the inn is occupied."
Stating that "we work on a 30 to 40 percent occupancy rate, yet pay taxes for 100 percent," he contended that "when there are no guests, most inns are just the innkeepers’ homes."
"So we are screwed both ways," he stated. "Less income, more taxes."
The letter from Kopelman and Paige, the firm which represents 125 communities from the Berkshires to Cape Cod, emphasizes that the town of Lenox faces no legal liability on any issues relating to short-term home rentals.
"It is my opinion that there are no town bylaws being violated by these short-term rentals," Bard wrote. Even if there were, he added, barring unusual circumstances, there is no liability for failing to enforce local rules. "The law recognizes that it is not feasible to enforce all violations and therefore relieves public entities from that global obligation," the attorney’s opinion concluded.
As a sample of how some towns have dealt with potential public safety concerns involving rented homes, Bard attached a registration requirement with the Board of Health used in Dennis on Cape Cod.
That bylaw requires that rented dwellings must comply with state or local health codes and limit the number of occupants. The town of Dennis also requires an annual fee for homeowners who rent out their premises and that working smoke detectors must be installed. Violations range from $50 to $200, based on the number of offenses.
"I include this simply as one example," Bard wrote.
"It’s certainly something I want to pursue," Roche commented. "It opens our eyes to what some of the other communities are doing. We have some homework to do."
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