There’s been a lot of talk lately about the potential demise of Airbnb. The homesharing platform deemed innovative by some, and a nuisance by others, has helped to define the public debate over sharing apps that have transformed downtowns nationwide with e-scooters, rented condos and the presence of Uber and Lyft cars on every street corner. Those local debates have been fierce in North Carolina metros, including Raleigh-Durham, Asheville, Wilmington and Charlotte, and have given way to a tenuous compromise in the state between tech companies, homeowners and established players in the hospitality and tourism industry.

But Airbnb’s steep revenue declines, close to 50% drops in Asheville, Myrtle Beach and Austin, show that regulation designed with only one technology in mind will make it harder to adapt as new tech emerges. Look no further than the troubles surrounding Swimply, a pool-sharing app not dissimilar in concept from Airbnb, which is causing a stir in Orange County.

Homeowners in the Chapel Hill-Hillsborough area were served with threatening letters from the Orange County Health Department (OCHD) for using Swimply to rent out their backyard pool by the hour to customers on the other end of the app. Does that transaction transform a homeowner’s private pool into a public pool? Here you see where common sense and regulatory policy don’t overlap.

The OCHD says in its letter, “When an owner or resident of a single-family dwelling opens use of that dwelling’s pool to the general public, especially for rent, they are explicitly expanding the use of the pool to users beyond the private use of the dwelling’s residents and their guests, and the pool is no longer private.”

This language implies that making money from the sharing of your pool is certainly problematic but also leaves room for it to be an issue if you were just opening your backyard gate to anyone looking to cool off for free.

Operating a party house or poolside hangout spot for college students won’t get you a Neighbor of the Year award, but it doesn’t mean you’re running a “public pool.”

The ill-fated argument put forward by Orange County is that a private pool becomes classified as a public one if it’s being rented out on a digital app like Swimply. So, a homeowner near UNC with a quiet, backyard pool that sees a few rental guests per week must then face the same level of code enforcement, chemical maintenance and property inspection as, say, Woodcroft Swim & Tennis Club in Durham, which sees hundreds if not thousands of swimmers a week. It’s ill-fated because this approach to regulation has been tried in other states, such as Wisconsin, where the Department of Health Services was set straight by the state’s Consumer Protection department after pushback from the pool, yard and tennis court sharing app.

Put simply, Swimply cannot be singled out for regulation just because they are not mentioned by name in state law for governing vacation rental properties. In principle, the business model and features of an app like this are covered by the allowances made for private property owners who’ve made use of Airbnb or other apps to generate supplemental income off their property.

An Airbnb host in Burlington could in theory offer their entire home for daily rental, including its amenities: kitchen, laundry, ping pong tables and an outdoor pool, with no interference. That property could see an equal number of guests per week as a Swimply listing, but the only difference is that the Airbnb guests would also be utilizing overnight accommodations in addition to a swimming pool.

Why would it be the business of public health regulators to police backyard swimming, but only for people who will be there for an hour or two as opposed to overnight? This is the question that regulators in Orange County have yet to contend with, and the issue remains unresolved at the expense of homeowners and sharing app users who want to enjoy private pool access during a summer that promises extreme heat statewide. Either the state of North Carolina believes in private property rights and a level playing field for innovation, or it doesn’t.

North Carolina has a workable framework in place for the sharing economy in the longstanding Vacation Rental Act, but it’s going to have to be either modified or supplemented by new legislation to add clarity for property owners and consumers alike who enjoy innovations in the sharing economy. Senate Bill 667 stands as one such piece of legislation that could bring an end to the harassment of North Carolina homeowners by misguided health department officials. The bill, championed by state Sen. Tim Moffitt (R-Henderson, Polk and Rutherford), would in essence preempt localities from banning short-term rentals or imposing onerous costs to listing private property.

No doubt, the measure presents a clash of values for its Republican backers, who on the one hand tend to favor local control as opposed to dictates from Raleigh about how towns should be managed. However, the competing value — that of property rights protected under state law — makes SB 667 a worthwhile consideration for conflicted lawmakers.

Whether it’s SB 667 or something new in a coming legislative session, the legislature owes North Carolinians clarity about their right to rent private property, whether it be backyards, pools, hot tubs, spare rooms or whole single-family homes.

Originally published here



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