The drafting mistake to avoid

Boards write house rules by copying the county rule. Here that produces a rule the association may be unable to justify and the City cannot enforce — and it invites an owner to argue that the association’s restriction rises and falls with the ordinance.

It does not. An association’s power to restrict rentals comes from its own recorded documents, not from zoning. Under HRS § 514B-32(a)(6) the declaration states the permitted and prohibited uses of each unit; the board adopts house rules under § 514B-104(a)(1); and § 514B-105(b) limits what rules may do relative to the declaration and bylaws.

So an association may lawfully impose a stricter minimum term than the county requires — 90 days, six months, a year — provided its own documents support it. That restriction is a private covenant, and the federal injunction against the City says nothing about it.

How to write it so it survives

• State the number, do not incorporate the ordinance by reference. “No unit shall be rented for a term of less than ninety consecutive days” is durable. “Rentals shall comply with the minimum term set by the City” moves with litigation you do not control.
• Check whether the restriction belongs in the declaration rather than the rules. A significant use restriction adopted only as a house rule is more vulnerable than one in the declaration — and a declaration amendment takes sixty-seven per cent of the common interest under § 514B-32(a)(11), or a majority for a condominium created before July 1, 2006 under § 514B-23.
• Decide the grandfathering question deliberately. The City lost on prior lawful uses. An association imposing a new restriction on owners who bought in reliance on the old one is in a different legal position — private covenants are not zoning — but it is picking the same fight with its own members.
• Build the enforcement route in. Section 514B-104(b) lets the association act directly against a tenant after notice and an opportunity to be heard, and makes the owner responsible for the tenant’s conduct and for fines levied on the tenant. Landlord-type remedies including eviction are available only if the violation is not cured within ten days of notice, with exceptions for damage or threatened damage.

The fine-dispute layer

Enforcement through fines runs into HRS § 514B-146(g): an owner contesting a fine has thirty days from a requested written statement to demand mediation, and the association is then barred from collecting the disputed charges until it has mediated, with the mediation to be completed in sixty days. And a lien arising solely from fines, penalties, legal fees or late fees cannot be foreclosed nonjudicially.

A board that intends to enforce a rental restriction with fines should assume every serious violator will use that route, and should budget the time accordingly.

What to watch

The appellate posture of the Honolulu case, and whether the City issues revised guidance. For boards, nothing about the answer changes the drafting advice: write your own number, in your own documents.