Guest Agreement

09/19/2018

10/27/2017

HOW TO PUT TEETH IN YOUR RENTAL AGREEMENT
What does your current rental agreement look like? Is it the standard form agreement supplied by your state realtor’s association? Is it a lease agreement, or one that has been pasted together from various sources? If so, you are not providing your clients with the best legal protection possible.
INTRODUCTION
The short-term vacation rental business is growing by leaps and bounds. The industry has expanded to include not only professional vacation managers, but private homeowners who recognize the benefits of renting out their second homes or rooms in their residences to create additional income for themselves.
Regardless of whether you are a vacation manager or an owner, it is important to consider the legal issues surrounding short-term vacation rentals. Many owners and managers are not aware of the legal protections they can avail themselves of by using a properly worded license agreement each time a property is rented out. They also don’t realize that by using the wrong type of agreement, it can be more harmful than helpful. Because they are not aware of the legal implications, some owners and agents currently use lease agreements. However, these agreements should not be used because they can impose legal obligations on the owner and give rights to short-term renters that were not anticipated by either party. Here is how you can teeth in your rental agreement
1. USE A LICENSE, NOT A LEASE
License-to-occupy agreements are the perfect contracts for short-term rentals. These agreements can be specifically tailored to accurately describe the relationship of the parties, allow owners or agents to evict problem guests without the need for lengthy and costly court proceedings and protect the owners from legal liability resulting from property damage caused by guests or injuries to guests while using the property. However, there are certain legal requirements necessary to create a valid license agreement.
Although many property managers have access to a form of license agreement through their state associations, the agreements being offered are oftentimes ambiguous. They do not contain liability waivers, nor do they include rules and regulations setting certain expectations of the guests by the owners of the properties. If the agreements currently being used don’t include language (1) which gives the property owner/agent unlimited access to the property during the course of the guests’ stay and (2) don’t clearly state they are a license agreement, they may still be interpreted by the courts as a form of lease.

BENEFITS OF USING LICENSE AGREEMENTS FOR SHORT-TERM RENTALS
The license to occupy is very popular where a short, fixed term tenancy agreement is required.
1. The Agreement can clearly describe the relationship of the parties as a temporary license to occupy, with no intention to create tenants’ rights. The Owner’s right to immediately terminate the contract and remove the renters from the property must be clearly stated in the agreement. This prevents a court from interpreting the contract as a lease and granting rights to guests that are not intended by the parties.

2. The agreement can include “property specific” legal liability waivers. If your rental property includes a pool and spa, liability waivers can be included in the contract that absolve the owner of legal liability if a guest is injured while using these amenities. Even if an owner has the wrong type of insurance coverage on their property or certain amenities are excluded from the policy, the owner can still be legally protected. However, the owner must have a written agreement signed by the guest each time the property is rented in order to obtain these protections. The renter must specifically agree to be bound by the liability waiver.

3. Ease of use – Today’s technology affords managers the ability to create license agreements, obtain all signatures, and store them online. These agreements can be created online in minutes, signed by the owner/manager online, signed by the renter online, and stored online. What could be simpler?

2. INCLUDE LIABILITY WAIVERS THAT ARE SPECIFIC TO THE PROPERTY BEING RENTED
Make sure your rental agreement includes liability waivers that are enforceable. GuestAgreement.com provides an easy to use questionnaire that the owner or manager completes online. It asks for information about the booking and what amenities are provided at the property. If the owner checks certain types of amenities, like a swimming pool, a specific liability waiver for use of the pool is automatically attached to the agreement.

Insurance companies like our agreement because it protects owners from liability in areas that insurance can’t cover or that exceed policy limits. There are no negative impacts to the owner for using our agreement.

ARE LIABILITY WAIVERS ENFORCEABLE?
The following discussion is excerpted from the article “The ABCs of Liability Waivers”
By Dr. Doyice J. Cotton.

What is a Waiver?
A waiver is a contract between a service provider (property owner) and a participant (guest) signed prior to participation by which the participant agrees to absolve the provider of any fault or liability for injuries resulting from the ordinary negligence of the provider, its employees or its agents.
Waiver law is based on state law. Thus, the answer to the question "Do waivers work?" depends on which state you are in. In at least 46 states, (excluding Louisiana, Montana, Virginia and Rhode Island) a well-written, properly administered waiver, voluntarily signed by an adult, can protect service providers from liability for injuries resulting from the ordinary negligence of the provider, its employees and its agents.
WHAT ARE THE LIMITATIONS OF WAIVERS?

Language Requirements: The most common reason waivers fail is because they are poorly written. Courts in all states require that the waiver language be clear and unambiguous. In addition, many states require specific language for the waiver to be enforceable. For instance, New York courts (and the courts in a number of other states) require that the waiver include language specifying the "negligence" of the provider. Failure to use the word "negligence" in those states causes an otherwise-enforceable waiver to fail.
Gross Negligence: In most states, courts will not enforce waivers intended to protect the owner against liability for gross negligence, reckless conduct, willful/wanton conduct or intentional acts. Ordinary negligence is defined as the failure to take the care that a reasonable, prudent professional would take under the circumstances; gross negligence is an extreme form of negligence in which the party fails to take the care that even a careless person would take under the circumstances.
Non-Signing Spouses: In some states a waiver signed by one spouse protects the owner from litigation by the non-signing spouse in the event of injury or death of the signing spouse. In other states, a waiver has no effect on the right of the non-signing spouse to bring suit. In this case, the owner will find itself lacking the expected protection of the waiver.
Minor Clients: A significant limitation that is very important to many service providers is the restriction on enforcing waivers signed by minor clients or signed by the parents of minor clients (parental waivers). Until recent years, the general rule was that neither waivers signed by minors nor parental waivers were enforceable. In the past few years, courts in a number of states have begun to enforce parental waivers. Additionally, two states (Alaska and Colorado) have passed statutes enabling the enforcement of such agreements.
RECOMMENDATIONS FOR USING WAIVERS
In spite of their limitations, waivers are still the best single risk-management tool available to service providers, other than the prevention of the injury. Here are some suggestions to maximize waiver effectiveness and protection:
Use waivers in all states for two reasons: First, waiver law in any state is always subject to change. Even though waivers were not enforced in the past, a new court or a new set of circumstances can result in their enforcement. Second, well-written waivers will include a discussion of the inherent risks of the activity, so even if the waiver is not enforced, the court may use the waiver as evidence that the signer knew and assumed the inherent risks.
Use parental waivers with minor clients in all states. There is no downside—if the waiver is not enforced, you are no worse off. In the past 15 years, courts or legislatures in 10 states have either enforced such waivers for the first time or passed legislation to that effect.

3. CREATE, SIGN AND STORE YOUR AGREEMENT ONLINE
To lock your guests in right away you need to send them a contract and have them complete it when the reservation is made. It is important to use an agreement that is customized to the property and contains the correct liability waivers to address the condition of the property and protect the owner.

GuestAgreement.com contracts can be created in a number of minutes. The agreements are signed by both parties online and stored on our website and in your email account. Under federal law, digital signatures are valid and enforceable. While unnecessary, parties are free to print and physically sign the document.

CONCLUSION
Being able to offer a solution to owners who have been searching for the right type of rental agreement; one that provides legal protections to owners, or alternatively, one that does not contain provisions which can establish rights to guests that the owners did not intend to provide, will give property managers the tool they need to educate and inform their clients on best in class practices in their profession. In particular, the use of an electronic agreement that can be created, signed and distributed to all parties with the mere click of a button gives managers a leg up on their competitors. To purchase an agreement, or for additional information, visit out site at www.GuestAgreement.com.

About the author:
William(“Bill”) Ballinger is a California attorney with over 30 years of experience with contracts and business matters. He is the Founder of GuestAgreement.com. Bill is a member of the Business Law Section of the California State Bar and the California Business Alliance For A Green Economy. He is also a member of the California Center For Cooperative Development, a supporter of the Sustainable Economy Law Center, and the owner of Collaborative Legal Solutions, Inc. Bill also sits on the Board of Directors of the Short Term Rental alliance of California (STRACA), a nonprofit organization promoting the use of short term rentals in California. Any questions or comments can be addressed to the author at [email protected].

01/24/2017

A Costly Lesson For Owners of Short-Term Rentals in California HOA’s
In an important decision handed down last year, the California Court of Appeal dealt a blow to owners of vacation properties located within homeowner’s associations in California. The case, WATTS vs. OAK SHORES COMMUNITY ASSOCIATION makes three significant rulings: (i) associations have the right to restrict short-term rentals, (ii) boards can impose a reasonable fee to offset expenses associated with renters, and (iii) courts should defer to boards on decisions related to the maintenance, control and management of common areas.

The case involved a HOA in San Luis Obispo county. The development consists of Six hundred sixty single-family homes. Only about 20 percent of the homes are occupied by full time residents. Approximately 66 absentee homeowners rent their homes to short-term vacation renters.

The Association passed rules and regulations regarding short-term rentals, including: 1) a rule stating the minimum rental period is seven days; 2) an annual fee of $325 imposed on owners who rent their homes; 3) a rule limiting the number of automobiles, boats and other watercraft that renters are allowed to bring onto the property; 4) a mandatory garbage collection fee; 5) boat and watercraft fees, 6) building permit fees; and 7) property transfer fees. These rules and fees were challenged by several homeowners filing suit against he Association.

The court found that the Association’s rules and regulations are reasonable and comply with the Association’s governing documents and the law. It should be noted that the Association had retained expert’s to conduct studies regarding the impact of short-term renters on the Association property. The experts concluded that the rules and fees imposed were appropriate to offset the increased impact/burden of the Association property, and the court agreed with the experts.

As if to make a point, the court awarded the Association a total of $1,208,376 in attorney’s fees and costs as the prevailing party in the litigation, stating that Mr. Watts could have avoided these fees “simply by declining to bring the instant unmeritorious action and by paying the Association the few thousand dollars it was properly demanding”.

Takeaways

1. If your HOA has imposed fees, or is threatening to impose fees on owners of short- term rentals, make sure they have conducted studies to back up these fees as being reasonable and directly related to the short-term use of the property. HOA’s cannot arbitrarily impose fees without justification.

2. If your HOA won’t allow short-term rentals, find out from the Board what their objections are. If they allege that the short-term renters will increase the burden on the common facilities, suggest that studies be conducted to determine what the increased burden is and charge the owners of the short-term units accordingly. Paying additional fees for the right to rent out your property short-term is better than not being able to rent your property short-term.

3. The decisions of the HOA board will usually be enforced, even if the board’s decisions don’t accurately reflect the sentiment of the majority of the Association members. In Watts, only 20 percent of the homes were owned by full time residents, but the decisions of the Board, which protected the full time residents, were held to be valid and enforceable.

4. If you want to change the way your Association treats short-term rentals, the best tactic is to change the make-up of the board by electing members that are sympathetic with your position. Change the board – don’t challenge their policies.
Challenging the board’s decisions in court can be a costly experience.

About the author:
William Ballinger is a California attorney with over 30 years of experience handling business matters. He is actively involved in issues that arise in the new “sharing” economy and is the founder of Guest Agreement.com, a website that creates and stores contracts specifically designed for short-term rentals. To find out more, visit GuestAgreement.com.

01/24/2017

ADDRESSING BIAS AND DISCRIMINATION IN THE VACATION RENTAL INDUSTRY
I recently read a blog entitled How The Sharing Economy Can Tackle Discrimination Claims, by the Law Firm Fischer Phillips. The article deals with the issue of how companies working in the sharing economy need to acknowledge and deal with discrimination claims. The author states:
A recent National Bureau of Economic Research study, looking at 1,500 rides on different ride-hailing services, found that passengers who used “African-American-sounding” names in cities like Seattle waited 35% longer for rides. In some cities, they were up to three times as likely to have their rides cancelled as white riders. The study found that African-Americans weren’t the only ones paying a high price for their chromosomes. In Boston in particular, study evidence — which utilized controlled routes, controlled passengers, and recorded key performance metrics — showed that drivers often took female passengers for longer, more expensive rides.
In the context of vacation rentals, it is obvious that this type of discrimination may be practiced so discreetly that it is hard to detect. When a host receives a booking request, most platforms follow the practice of giving the guests’ name and photo. There are a myriad of reasons why a reservation can be denied and most hosts will not admit openly, or may not even be conscious of the fact, that the real reason for the denial is the ethnicity of the guest.
This raises the question: is it necessary to include the guests name and photo at the time of booking? As the blog points out:
Because many sharing economy apps provide pictures of customers and employees, as well as names that could be interpreted as more Anglo- or African-American, consider whether the inclusion of such photographs is necessary to the operation of the business. It could allow customers to inappropriately “screen” employees based on protected categories. For instance, Innclusive, a peer-to-peer accommodation platform developed as an alternative to Airbnb, does not show a profile picture or personal information until hosts agree to a booking.
As a homeowner who rents out my property I admit that this is a tough call. If I allowing a group of people to use my house, I want to know something about them. I like seeing a photo and reading reviews from other owners. If a host is not given the guests name or photo, how would reviews work? How would you review someone without referring to them by their name?
As a white male growing up in America, I admit that I’ve never worried about being denied accommodations because of my ethnicity. However, it is easy to understand how this issue raises its head everyday all over the world in the vacation rental industry. I applaud Airbnb for openly addressing the issue and admitting that they have been remiss in dealing with it. In a 32 page report released by Airbnb it said it is developing new tools to route discrimination concerns to a group of trained specialists, who will handle the complaints. The company also plans to begin training to address unconscious biases and is pushing for more diversity within its own work force. It also told its rental hosts that they needed to agree to a “community commitment” starting on Nov. 1 and that they must hew to a new nondiscrimination policy.
There are no easy answers. As Laura W. Murphy, a former director of the American Civil Liberties Union’s Washington legislative office, who was hired by Airbnb to compile its report, stated:
“There is no one product change, policy or modification that can eliminate bias and discrimination,” she wrote. “Tackling these challenges requires a sustained and multifaceted approach.”
As citizens, we need to root out bias and discrimination wherever we see it. As vacation rental hosts, we can commit to being part of the solution, not part of the problem. As with any issue of social concern, the more we dialogue about it the more solutions come into the light. If you have any creative ideas to address these issues, I’d like to hear from you.

About the author:
William Ballinger is a California attorney with over 30 years of experience handling business matters. He is actively involved in issues that arise in the new “sharing” economy and is the founder of Guest Agreement.com, a website that creates and stores contracts specifically designed for short-term rentals. To find out more, visit GuestAgreement.com.

09/07/2016

A NEW TYPE OF CONTRACT FOR SHORT-TERM RENTALS
The short-term rental business is a burgeoning industry. According to statistics taken from the Short Term Rental Advocacy Center website:
• Over 52% of surveyed individuals plan to stay in a vacation rental in 2014, up from 44% in 2013. [TripAdvisor, 2014]
• • Online bookings jumped from 12% of the vacation rental market in 2007 to 24% in 2012. [PhoCusWright, 2013]
• • Nearly three quarters of peak-summer vacation rental owners (72 percent) reported occupancy rates of 76 percent or higher, an increase of 8 percent over last year. Meanwhile, hotel occupancy rates increased just 5% over last year’s rates. [HomeAway, September 2012]
It is clear that short-term rentals are here to stay and that they are providing financial assistance/relief to many homeowners.
You need a contract every time you rent out your property
Many owners ignore the necessity of a written agreement because of the perceived inconvenience to themselves and their guests. However, considering the protections provided by a signed agreement, owners and managers cannot afford not to get a contract signed each time they rent out their property. The good news is that an attorney has created a customized agreement for short term rentals that takes the inconvenience out of the process. The agreement, which can be found at GuestAgreement.com requires just minutes to complete by the owner or manager and the guest. The agreement is created, composed and signed online. GuestAgreement.com then stores the agreements permanently on its site until the owner chooses to delete it.
You need the right type of contract
If you currently use a contract for your short-term rental, you are probably using some form of lease agreement. This is because lease agreements are what have been used for rentals for years and are easily available. However, by using a lease instead of a license to occupy agreement, you put yourself at a distinct disadvantage when dealing with your guests.
The legal distinction between a lease and a license is somewhat technical. A lease grants exclusive possession of specific property by an owner, or “landlord”, to a “tenant”, who is given an interest in the property during the length of the lease. The interest in the property created by the lease is called a “tenancy”. This relationship automatically creates significant obligations on the owner. Under a lease, if the tenant refuses to leave the premises at the end of the lease term, the owner must take them to court and have them evicted. This process can take months to complete and cost the owner thousands of dollars. There are many other legal obligations placed on landlords in a lease arrangement, even if they do not appear in the lease document. Why take on these obligations if you don’t need to?
A license to occupy, on the other hand, gives temporary permission to use property that belongs to another. A license is revocable at the will of the licensor, and creates no legal interest in the property. In a license relationship the owner has the right to revoke the license (or permission) “at will” and to use “self-help” to remove a defaulting licensee from the licensed premises. This means an owner can move a guest out of his property if the guest violates any of the terms of the agreement.
There are specific requirements for a contract to be termed a license agreement as opposed to a lease. At GuestAgreement.com we have created a license agreement designed specifically for short-term rentals. Our agreement contains the language necessary to create the licensor/licensee relationship.

License agreements are what hotels and motels use. That is why they don’t have to go to court to evict their guests if they catch them smoking in a room. License agreements are also used by most college dormitories. In both instances, the owner of the property and the persons they are renting to agree that the use is temporary and no long term tenancy is intended.

GuestAgreement.com provides an easy to use questionnaire that the owner or manager completes online. It asks for information about the booking and what amenities are provided at the property. If the owner checks certain types of amenities, like a swimming pool, a specific liability waiver for use of the pool is automatically attached to the agreement.

GuestAgreement.com contracts are signed by both parties online. By federal law, this is a valid and enforceable signature. However, while unnecessary, parties are free to print and physically sign the document.

Using GuestAgreement.com is as simple as 1, 2, 3:

1. Sign up for a free membership (we don’t have recurring fees and don’t require a credit card unless you want to purchase an agreement).
2. Create your first agreement by answering a short series of questions about your specific property. A full contract will be created online for your review. Sign the agreement online and it will be emailed to your guest, where they also sign online. The fully signed agreement is sent to your email and stored on our site.
3. The second agreement for a property is even easier to prepare, since the information previously entered is stored in your account. Simply change the guests name, occupancy dates, rental and deposit amounts and a contract specific to your property is created for your signature.

Insurance companies like our agreement because it protects owners from liability in areas that insurance can’t cover or that exceed policy limits. There are no negative impacts to the owner for using our agreement.

We are confident that you will appreciate the convenience and protection offered by a GuestAgreement.com contract. To sign-up and purchase your first contract, visit us at GuestAgreement.com.

04/06/2016

GuestAgreement.com Slideshow

04/06/2016

GuestAgreement.com