Airbnb on Hawaii: What is and isn’t legal?

Are short term rentals, also known as AirBnb or VRBO, allowed in Hawaii? There are several regulations that govern the Airbnb experience on our islands – many which currently make it difficult to legally host an Airbnb. While this information is not exhaustive nor legal advice, and it is only current at the time of writing, the following are some legal aspects to consider when thinking about becoming an Airbnb host.

Zoning laws dictate whether the property can be legally used as a short-term rental and differ on each island.

Oahu: Are short term rentals allowed in Honolulu? Can you rent an Airbnb in Oahu?

Yes and no. As of October 6, 2022, there are approximately 30 different developments or buildings that allow short-term rentals on Oahu. These buildings allow short-term rentals because they're located in resort-zoned areas (e.g. Waikiki). There are some homes or condos outside of resort-zoned areas that have a short-term rental license grandfathered in from the past, but for the most part, if you run a short-term rental or Airbnb outside of the resort-zoned areas, then you're allowed to rent them for a minimum of 30 days.

Ordinance 22-7 of Bill 41 has received pushback from the community, where one advocacy group named Hawaii Legal Short-Term Rental Alliance (HILSTRA) has officially filed a complaint to contest it. A court hearing was held on September 7, 2022, and no decision has been made, so a preliminary injunction was filed to delay the enforcement of the 90 days rule. A ruling has been made on Friday, October 14, 2022, in favor of the preliminary injunction, so short-term rental owners can continue to operate with a minimum of 30 days.

History of changes:

• October 14, 2022 - U.S. District Court Judge granted the preliminary injunction to halt Ordinance 22-7. Short-term rentals are allowed to continue to operate with a minimum booking time of 30 days.
• April 26, 2022 - Bill 41 (21) CD2 and Ordinance 22-7 was passed changing on April 26, 2022. This bill changed the minimum booking time from 30 days to 90 days. It was supposed to start on October 23, 2022.
• June 4, 2021 - Illegal B&Bs will be placed under heavy fines (think $1,000 to $10,000 a day!). The City and County of Honolulu had received 2,133 complaints for short-term rentals and had issued 568 Notices of Violation (NOV).
• September 17, 2020 - Ordinance 19-18 would allow about 1,700 permits for B&Bs. Despite the expectation that the online lottery system to gain a legal permit to host a bed-and-breakfast on Oahu would begin in October 2020, it has not yet begun due to the passage of Ordinance 20-30, which modified Ordinance 19-18 and was signed by Mayor Kirk Caldwell on September 17, 2020.
• February 10, 2020 - Specifically for North Shore B&Bs, excluding Kuilima, no new permits will be given out to that area based on the North Shore Sustainable Communities Plan. However, currently, legal B&Bs at the North Shore can accommodate guests until October 23, 2022 when the City will begin issuing those new B&B licenses.
• February 10, 2020 - Kuilima Estates East and West, next to Turtle Bay Resort and Golf Course, now permits B&Bs and short-term rentals. The decision was made on February 10, 2020 by the Department of Planning and Permitting (DPP) because Kuilima Estates East & West is within 3,500 feet of a resort zone district greater than 50 contiguous acres. See the map below for the permitted area.
• June 25, 2019 - It started with Bill 89, also known as Ordinance 19-18 signed by Mayor Kirk Caldwell, limiting Bed and Breakfasts (B&Bs) on the island. Specifically, no more than 0.5% of the total number of dwelling units in each regional area on Oahu can be used as B&Bs. That’s 1,699 rentable B&Bs on Oahu; 183 B&Bs with legal permits on Koolau Poko (Kailua, Waimanalo, Kaneohe).

Maui: Can I rent an Airbnb on Maui?

As of July 2019, there are more than 16,000 units that are legally eligible to operate as short-term rental homes (less than six months) without requiring a Bed & Breakfast Permit or Conditional Permit. They are generally in hotel zones, but homes outside the pre-existing criteria may be legally allowed to operate; as of November 2018, 353 vacation rentals had permission to operate outside of the hotel zone.

As of June 2021, the Maui Meadows area of Kihei-Makena Community Plan and the Paia-Haiku Community Plan Region had reached their caps for permits for short-term rental homes or AirBnbs.

On January 7, 2022, Ordinance No. 5316 was adopted where Bed and Breakfast permit applications are still accepted, but no new short-term rentals or vacation rentals applications are being accepted.

In Maui County, short-term rental homes with permits can be rented without the owner present. To apply to be a Short-Term Rental Home you must complete an application through Maui County’s Planning Department, which must also include a Zoning & Flood Confirmation Form. The Planning Department processes these applications, and it typically takes several months.

Kauai: Are short term rentals allowed in Kauai?

Airbnbs are legal in certain Visitor Destination Areas (VDAs) or districts that are zoned for hotels. There are around 3,000 to 4,000 vacation rentals in these areas, and Kauai no longer legally allows short-term rentals outside of these designated areas. If a vacation rental obtained a non-conforming use certificate before March of 2008, then the rental was grandfathered in.

In short, any short term rental for less than 180 days of a room within a home, or an entire home or apartment itself, is not permitted. Also, there is no application to apply to be an AirBnb host in Kauai if you do not have property in a Visitor Designation Area (VDA). The County of Kauai and its Planning Department govern short term vacation rentals on the island of Kauai.

The Big Island: Are short term rentals allowed in Hawaii?

Under Bill 108, short-term vacation rentals on the Big Island or County of Hawaii are now defined as dwelling units with no more than five bedrooms for rent, rented for 30 consecutive days or less, where the owner does not live on site. New short-term vacation rentals are not allowed in single-family residential and agricultural zones and are only allowed in hotel, resort, commercial and multi-family commercial zones. Roughly 95% of the Big Island is classified as conservation or agricultural land, so that leaves only a few areas to legally run an Airbnb. A popular place to search for legal short-term rentals on the Big Island is Waikoloa.

Bill 108 also known as Ordinance 2018-114 also made a way for existing short term vacation rentals to apply for Nonconforming Use Certificate to allow them to be able to continue to operate in a normally unpermitted area. The Planning Department on the County of Hawaii is tasked with administering and monitoring AirBnbs on the Big Island.

COVID-19 added further limitations to Hawaii Airbnbs, especially on Oahu.

The question of is Airbnb legal in Hawaii continues throughout the coronavirus pandemic and adds further restrictions for many Hawaii vacation rental owners and travelers who want to experience paradise outside a hotel.

Hawaii Airbnb laws became more complex on Oahu and the other islands during the COVID-19 pandemic. The mayors of Maui, the Big Island, and Kauai restricted vacation rentals in March 2020, but on June 16, 2020, they allowed legal Airbnbs to operate again. Legal short term vacation homes can now operate; however the State of Hawaii’s travel restrictions and other mandates related to COVID-19 remain in place, with Governor Ige saying these regulation will be in place until Hawaii reaches a 70 percent vaccination rate.

Airbnb listings – whether legal or illegal – must abide by Hawaii tax laws.

(1) Certificate of Registration: Airbnb hosts must obtain a Certificate of Registration from the Hawaii Department of Taxation, as required by Hawaii state law. After successfully obtaining the Certificate of Registration, Airbnb hosts are required to post the Tax ID on their online listing.

(2) Transient Accommodations Tax: After registering and obtaining a Tax ID, Airbnb hosts are ready to pay their taxes to the state! The Transient Accommodations Tax is applied to stays of less than 180 days. As of January 1, 2018, the Transient Accommodations Tax is 10.25 percent.

(3) General Excise Tax: Hawaii does not have a sales tax; instead, we have the General Excise Tax (GET), which is assessed on all business activities, including short-term rentals. The current GET is 4.712 percent on Oahu.

(4) Property Tax: The property taxes in Hawaii differ according to county.

As of July 1, 2021, Honolulu City and County, which encompasses the island of Oahu, has a new property tax class: bed and breakfast home (Class J). A legal Airbnb in Hawaii on Oahu would most-likely fall into this class, and the tax is 0.65% of the assessed value. Read more about Honolulu property taxes here. In short, bed and breakfasts are defined as rentals of less than 30 days where the homeowner or another operator is present during the stay, which is ultimately the definition of an Airbnb in Hawaii. A typical B&B might be when someone has a room rental in their own home where they live. Transient vacation rentals (TVRs) are defined as “unhosted” or “whole home” rentals of less than 30 days, where an owner or operator is not present; TVRs are taxed in the hotel & resort class at 1.39%.

The real property tax rates on Maui County, which includes the island of Molokai, is $11.08 per $1,000 net assessed value for “short-term rentals,” like Airbnb, and $10.70 per $1,000 net assessed value for “hotel and resort” zoned property, as of July 1, 2020.

In Kauai County, the 2021 property tax rates for short-term accommodations are $9.85 per $1,000 net assessed valuation for “vacation rental” properties and $10.85 tax rate for “hotel and resort” zoned properties.

On Hawaii County, or the Big Island, there is no vacation rental or short-term rental tax classes. The tax rates that may apply to an Airbnb in Hawaii County are the hotel/resort property tax, which is $6.15 per $1,000 net taxable building, as of July 1, 2021 to June 30, 2022.

Construction laws and neighborhood rules add additional regulations to Airbnb listings.

Building and Housing Standards: Oahu’s Building Code and Housing Code specify the minimum requirements for construction, maintenance, health, and safety. Regulations differ between residential and non-residential uses and between islands, so consult the codes for more information.

Other Rules: There may be other contracts or rules that regulate your potential Airbnb listing, such as leases, HOA rules, or co-op or condo board rules. Read lease agreements or check with the appropriate parties if applicable.

Enforcement of the laws and regulations is not an easy endeavor.

The Hawaii Appleseed Center for Law and Economic Justice estimates 23,000 vacation rentals exist in Hawaii, many of which are illegal.

Inspectors on each island try to enforce the zoning laws. But with thousands of Airbnb listings and less than twenty zoning inspectors in each county, enforcement is problematic. Online advertisements do not provide enough evidence to prove an Airbnb listing is illegal. Inspectors must obtain information like the visitor name, the duration of their stay, and documentation of compensation. Once the inspector does have enough evidence and issues a violation notice, the Airbnb host has 30 days to make corrections, or they will be fined.

Also, it is difficult for the state to determine whether Airbnb hosts pay the state taxes. Because of privacy laws, the State Department of Taxation is currently trying to obtain a subpoena to collect host information from Airbnb.

Lastly, the City and County of Honolulu released an online form on 12/23/2019, asking the public to report any suspected illegal Airbnb rentals. So far, there have been many reports of inspectors following up on leads.

While there are several controversial and potentially changing regulations that govern Airbnb listings, the benefits of becoming an Airbnb host may outweigh the bureaucratic burdens. Consult a lawyer, an accountant, the Department of Planning and Permitting, the Department of Taxation, or other county or state agencies for more information.