Judge says that renting out someone else’s Airbnb doesn’t require a real estate license.

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Published: Wednesday, 26 June 2021 11:00:06

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

It is unclear whether the October ruling by Merrimack County Supreme Court Justice Andrew Shulman will affect the ongoing debate over whether cities can control these short-term leases, but it confirms that no such system exists at the state level.

“The legislature has not yet developed a comprehensive legislative framework to govern the rapidly changing practice of ‘living together,'” Schulman wrote.

“This shows that the state cannot regulate short-term leases at all under the current legislative scheme,” said Peter McGrath, whose law firm represented the defendant, Kerry McCauley, noting that the situation is different in other states. “The question remains whether every community should start regulating short-term rentals.”

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

The City of Conway has been particularly aggressive on this issue. He put the issue on a warrant for the annual meeting – voters approved the idea of ​​rent, but allowed the elect to regulate it – and petitioned the Supreme Court for power to control rent. In recent years, Canterbury has sent out termination orders to some tenants, alleging violations of zoning laws, while the issue of Portsmouth’s ability to regulate leases was referred to the State Supreme Court, which upheld it.

The October ruling was prompted by the New Hampshire Real Estate Commission’s accusation that Conway’s McCauley acted as a real estate agent without a license to handle other people’s rent through Airbnb and Homeaway, for which she was paid. According to the ruling, the commission sought criminal, not just civil charges against McCauley.

Judge Shulman ruled that short-term leases were not subject to state law in relation to real estate transactions that relate to the legal term “lease.”

“No three-day Airbnb guest will believe that he or she is interested in real estate. It is impossible even to imagine that a family with a one-week stay on Airbnb … will (record) the agreement in the register of transactions, “he wrote, adding that the government tax on room and board” applies to short-term tourist ‘rent’ as if it were motel rooms, “and the law” exempts such a “lease” from landlord / tenant protection. “

Schulman allowed some aspects of the Commission’s complaint against McCauley to move forward “to determine if McCauley has crossed the line in real estate practice” as part of her services.

The complaint was filed in October 2018 and concerned activities over several years. His passage through the court was partially delayed due to the retirement of Judge Richard McNamara, who listened to the hearing on the merits of the case on May 7, 2020.

(David Brooks can be reached at 369-3313, dbrooks@cmonitor.com, or Twitter @GraniteGeek.)



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