Publication

Wisconsin homeowners are getting at least a temporary reprieve from a rule calling on them to obtain a commercial pool license before listing their pools or hot tubs on sites like Airbnb or VRBO.

The Joint Committee for Review of Administrative Rules voted 6–4 last week to suspend a state rule that had allowed the Department of Agriculture, Trade and Consumer Protection to require homeowners to have such a license if they were going to list their pools or hot tubs on property-rental sites. A challenge to the rule arose after the website Swimply, which allows homeowners to rent out pools or hot tubs by the hour, questioned why properties it was listing should be held to the same standards as public pools. Some homeowners had complained it could cost $100,000 or more to bring a residential pool up to commercial code.

Representing Swimply in the dispute was the conservative group Wisconsin Institute for Law and Liberty. Luke Berg, deputy counsel for WILL, said in testimony last week that, “a pool or hot tub does not become a ‘public’ pool simply because the home is rented on a short-term basis, any more than it would if the home were rented on a yearly basis or if the homeowner had guests over. It is a private transaction between two private parties; only the tenant can use the pool.” ...

The suspension of the state rule for pools and hot tubs listed on online rental sites may seem like a win for Wisconsin homeowners as they prepare for a summer surge of bookings. But Michelle Ebben, a real estate attorney at Michael Best, cautioned that there could be more regulation to come.

“I would suspect that if this deregulation goes forth, you can expect to see the attempts at the municipal level to preserve affordability of housing in tourism areas to create stricter regulation specific to pool or other areas of shortterm rentals,” Ebben said. “As short-term rentals have garnered more popularity there are certain aspects that have been deregulated and it is inevitably responded to somewhere else to be prohibitive for short-term rentals. It’s just one particular example of the larger dynamic.”

She said hotel and motel owners’ concerns about fairness are legitimate.

“Competing against someone who doesn’t have the same regulation is a fair point to raise,” Ebben said...

...Ebben said the final word probably won’t come until the state Legislature reconvenes in early 2023. She said lawmakers will then have to decide if this is an issue pertaining more to affordability or to common-sense deregulation.

To read the full Wisconsin Law Journal article, please click here.