N.H. High Court Rules in Airbnb Case Against Portsmouth Couple

Sep 27, 2019

The N.H. Supreme Court opinion Sept. 27, 2019 upholds a superior court ruling that a Portsmouth couple was not allowed by local ordinance to rent out a spare house in a residential zone over AirBnB.
Credit Dan Tuohy / NHPR

The New Hampshire Supreme Court has ruled that a short-term rental property owned by a Portsmouth couple cannot operate in a residential zone. 

The couple was renting out the house next door, which they also owned, on platforms like Airbnb, VRBO and Homeaway, and advertising that it could fit up to nine people.

Portsmouth zoning regulations forbid hotels, motels and boarding houses that cater to short-term, "transient" occupancy in that area of the city. The couple argued that definition is too vague and does not clearly include short-term rentals. The court rejected that argument.

The court wrote “using the property to provide short-term rentals to paying guests on a daily basis constitutes a ‘transient occupanc[y]’ similar to a hotel, motel, rooming house, or boarding house, rather than a permitted ‘[d]welling unit’ use.”

Robert Sullivan is the city attorney who represented Portsmouth in the case. He says the city views the short-term rental like a hotel operating in a residential zone. 

“The idea that a business which was going to operate more like a hotel than a house was problematic for the people who live there,” said Sullivan. “That’s the basis of the zoning restrictions and really the underlying fact of this whole case.”

Portsmouth isn’t the only place in New Hampshire to grapple with the growing presence of Airbnbs in residential areas. Conway and Laconia, two towns with high demand for Airbnbs, are currently considering changes to include short-term rentals regulations. 

Sullivan says the decision could set a legal precedent statewide, though parts of it are specific to Portsmouth.

“As you read in the opinion, you’ll see that the ordinance relies heavily on the specific definitions in the Portsmouth zoning ordinance," he says. "And a different zoning ordinance in a different place might lead to different definitions for example leading to a different result.”

Read the N.H. Supreme Court's opinion below: