Life, Liberty, and the Pursuit of Home-Sharing

by Christina Sandefur
November 8, 2018

Last week, I joined the Federalist Society for a teleforum presentation on Life, Liberty, and the Pursuit of Home-Sharing to talk about a centuries-old American tradition that’s come under increasing attack by local governments in recent years.

For generations, Americans have allowed guests to stay in their homes, often in exchange for doing chores or paying for dinner. Today, technology allows people to do this in ever more efficient ways—to allow guests to rent a room or a house for a week or a night at time. Home-sharing benefits local economies, helps homeowners earn money to pay their mortgages, and gives travelers more choices at lower prices. It also represents an important 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.”

But cities nationwide are cracking down on home-sharing, depriving homeowners of property rights not only through outright bans, but also by imposing astronomical fines, cumbersome procedural requirements, and discriminatory rules. As I explain in the presentation, this war against home-sharing is foolhardy and unjust.

The usual reason given for forbidding people to choose whether or not to allow guests in their homes is that these guests sometimes make noise or increase parking or traffic problems in local neighborhoods. But cities already have rules on the books to deal with nuisances like these, and they should enforce those, rather than imposing one-size-fits-all bans that take away people’s right to use their own property even when they aren’t causing nuisances. And government shouldn’t create new restrictions against longstanding practices (here, allowing an overnight guest to stay in one’s home) just because people have found an innovative way of communicating about those practices.

Many of these new anti-home-sharing rules are unconstitutional. The Framers of our Constitution considered property rights to be a fundamental human right. Why should that right be any less protected if someone is sharing their home? Offering the property for rent rather than living in the home oneself doesn’t change the justification for the protecting that right. Neither does the exchange of money. If you are allowed to let someone sleep on your couch or in your guest room for free, you should be allowed to let them do it for money. If a family is occupying a home for residential purposes for ten years, a year, a month, or just a few days—that’s still a residential use.

Home-sharing restrictions are an assault on a host of constitutional rights. Anti-home-sharing rules that don’t target nuisances inevitably offend privacy rights, for example. Determining whether an occupant is a homeowner or a guest requires officials to invade a person’s privacy. That’s the situation in Chicago, where the city requires home-sharers to open their homes to city inspectors “at any time and in any manner,” without a warrant or even a reason, and as often as city officials wish. Under this rule, city inspectors could enter a home if no nuisance was occurring or even if no guests were present in the home. Homeowners were also required to collect their guests’ sensitive personal information, including names, home addresses, signatures, and dates they visited, and keep that information for three years, during which time city officials could demand that information without a warrant or reason.

The Goldwater Institute and the Liberty Justice Center are in court challenging this Chicago’s anti-home-sharing law not only because the Fourth Amendment protects Americans against unreasonable searches, but because the Illinois Constitution explicitly protects the right of privacy. Forcing homeowners to waive these rights in exchange for permission to allow overnight guests in their homes violates both property and privacy rights.

Unfortunately, this is only one of many examples of cities enacting anti-home-sharing laws that don’t aim at abating nuisances, but instead simply deprive property owners of the right to decide how to use what belongs to them. On the teleforum, I discussed examples from Miami Beach, Florida; Seattle, Washington; Pacific Grove, California; and others. The Goldwater Institute is continuing to fight for the rights of homeowners in cities across the country.

The Supreme Court has said that government can’t impose “unconstitutional conditions” on people who seek permits, licenses, or government benefits. Yet that’s exactly what these anti-home-sharing rules are: unconstitutional conditions—forcing people to give up their property rights in exchange for being allowed to share their homes with overnight guests. In most cases, traditional nuisance regulations work just fine to address any problems caused by renters. Regulation should target actual harm without undermining rights.

If you missed the teleforum, you can download the podcast here.

Christina Sandefur is the Executive Vice President of the Goldwater Institute.