Posted: 6/26/2021 11:00:06 AM

A judge ruled you don’t need a real estate license to handle short-term rentals for other people through online marketplaces like Airbnb, the latest debate over rules and regulations for the relatively new industry .

It’s unclear whether the ruling, released in October by Merrimack County Superior Court Judge Andrew Schulman, will affect ongoing debates over whether cities can control these short-term rentals, but it confirms such a system does not exist at the state level.

“The legislature has not yet developed a comprehensive legislative scheme to govern the rapidly evolving practice of ‘house-sharing’,” Schulman wrote.

“This shows that the state cannot at all regulate short-term rentals under the current legislative regime,” said Peter McGrath, whose law firm represented defendant Kerri McCauley, noting that the situation is different in other states. “This leaves the question of whether each community should start regulating short-term rentals.”

Short-term rentals are a source of controversy in some areas, especially in tourist areas. Proponents argue they provide a flexible source of income for homeowners, while opponents claim they can ruin the local quality of life due to noise and traffic, and may make apartments and houses more expensive by removing units from the local building stock.

The Town of Conway has been particularly aggressive on the issue. He put the question on the mandate of the annual meeting – where voters accepted the idea of ​​rentals but gave permission to elected officials to regulate them – and asked the Superior Court for permission to control rentals. . In recent years Canterbury has sent cease and desist orders to some tenants alleging a violation of zoning laws, while the issue of Portsmouth’s ability to regulate rentals has been referred to the Supreme Court of l ‘State, which confirmed it.

The October court ruling was prompted by an accusation by the New Hampshire Real Estate Commission that McCauley of Conway was acting as an unlicensed real estate agent to handle other people’s rentals through Airbnb and Homeaway, for which she collected a fee. According to the ruling, the commission sought to lay criminal charges, not just civil charges, against McCauley.

Judge Schulman ruled that short-term rentals were not covered by state law regarding real estate transactions, which relates to the legal term “the lease”.

“No three-day Airbnb traveler would believe they’ve gotten an interest in real estate. It is not even in the periphery of the imagination that a family with a contract for a week-long Airbnb stay… (register) the agreement in the register of deeds, ”he wrote, adding that state room and meal tax “applies to short-term tourist” rentals “as if they were motel rooms” and the law “exempts such” rentals “from landlord protection / tenants. “

Schulman allowed certain aspects of the Commission’s complaint against McCauley to go ahead, “to determine whether McCauley has crossed the line in real estate practice” as part of his services.

The complaint was filed in October 2018 and involved activities dating back several years. His time in court was delayed in part by the retirement of Judge Richard McNamara, who heard a May 7, 2020 hearing on the merits of the case.

(David Brooks can be reached at 369-3313 or [email protected] or on Twitter @GraniteGeek.)

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