Sandefur, Christina, Turning Homeowners into Outlaws: How Anti-Home-Sharing Regulations Chip Away at the Foundation of an American Dream (January 30, 2017). University of Hawaii Law Review, Forthcoming. Available at SSRN: https://ssrn.com/abstract=2908248
““Home-sharing” may sound like a modern invention, part of the cutting-edge, high-tech “sharing economy.” In fact, home-sharing is a centuries-old American tradition. For generations, people have let visitors stay in their homes, rather than in hotels, sometimes in exchange for money or for doing chores. The only difference now is that the practice has become more efficient: the internet has enabled homeowners and travelers to connect better than ever before, and online home-sharing platforms such as Airbnb and Homeaway now help millions of homeowners rent rooms or houses to help pay their bills. Most importantly, home-sharing represents an important new way for property owners to exercise their basic right to choose whether to let someone stay in their home — a right the Supreme Court has called “one of the most essential sticks in the bundle of rights that are commonly characterized as property.”
Yet cities nationwide have responded to innovations in home-sharing not by welcoming this economic opportunity or respecting the rights of property owners, but by imposing draconian new rules that deprive Americans of some of their most basic constitutional rights. From New York City to Santa Monica, places with bustling tourism economies are rushing to restrict homeowners from offering rooms in their homes to travelers. These regulations hurt communities and punish the responsible majority of property owners for the potential wrongs of a few. Worse, these laws violate fundamental constitutional protections, impose arbitrary searches on homeowners, discriminate against non-residents, and subject them to extreme punishment without fair warning or clear guidelines.
This article surveys some of the most egregious home-sharing restrictions and some of the ways they violate critical constitutional rights. First, this article explains that the recent rash of home-sharing restrictions results from the fact that, with few exceptions, courts have permitted government to deprive owners of their right to use property so long as government technically does not take title to the land. Next, the article explores how home-sharing restrictions, while aimed at the use of property, have actually deprived Americans of other constitutional rights, including privacy. The article then identifies and addresses some of the primary arguments in favor of home-sharing restrictions and explains why those arguments do not justify stifling property rights and other freedoms. Finally, the article proposes alternatives to outright bans, and ways government can regulate home-sharing to address legitimate concerns without violating constitutional rights.”