A rural resident who told the Douro-Dummer township council that people like her “have a right to the quiet enjoyment of our homes” is unquestionably right.
So do the many cottage owners who believe they have the right to rent out their properties by the week or weekend – but only if tenants follow the rule of quiet enjoyment.
Finding harmony between these two desires has been difficult, creating an escalating battle for short-term rentals (LDR) across the province.
Douro-Dummer talked about it again this week. The Council heard STRs described as an “invasive species” that must be eradicated.
As in many townships in the province, Douro-Dummer is unsure whether a ban is enforceable. A task force has been set up to look at ways to regulate cottage rentals rather than trying to make them illegal.
But during these debates, it is always suggested that if municipalities could ban DOS, they would.
So far, courts and regulators have ruled against bans, for good reasons.
The rules are meant to control what happens next door, not to deny it. Noise limits, limits on the number of rental units in a building, parking space requirements, and defining a building’s proximity to the lot line are standard regulatory restrictions.
The rules don’t say you can’t rent your house to someone else, and you never have.
That’s the black and white of the matter.
The growth of companies like Airbnb and VRBO has introduced a gray area, turning rental properties into quasi-hotels occupied by guests rather than tenants.
Some owners of short-term rentals are responsible, check their guest lists, and control numbers and parties. Others don’t.
Prohibiting use punishes both. It protects the rights of one group – neighbors who are upset by short-term revelers – at the expense of responsible tenants.
The question of whether this is possible has not been definitively decided, but the trend is a “no”.
In April, the Ontario Land Tribunal ruled that Township of Oro-Medontenear Lake Simcoe, went overboard with a by-law that attempted to close all STRs by deciding they were for commercial use in residential zoned areas.
However, Oro-Medonte plans to appeal this decision in court. All of rural Ontario will be watching.
The Land Tribunal ruled that STR regulation was the way to go. This could include annual licenses and some use restrictions, the route taken by the City of Toronto in response to an urban version of the problem.
This has been the consistent message in past decisions on similar regulations. Property rights are not protected by the Constitution and the Charter of Rights of Canada, but the approach is similar to how the Supreme Court of Canada deals with Charter issues.
Rights can be restricted, the court has often ruled, but this “infringement” must be treated with the greatest possible lightness.
If it is possible to effectively regulate how cottages are rented for short periods of time, rather than prohibiting this practice altogether, then regulation best fits the Charter principle.
Douro-Dummer plans to follow this path, considering better enforcement of existing noise and nuisance regulations and possibly a licensing system.
However, he said the same thing a year ago and didn’t come up with a plan.
Waiting for a final court ruling is one way to fix the STR problem, but it could take years. Developing enforceable regulations, which will likely be the judicial outcome anyway, is the most responsible approach.