On May 2, the New Hampshire Supreme Court released its decision in the Town of Conway v. Scott Kudrick case, involving a property owner's right to use his property for a short-term rental. The Court ruled in favor of the property owner, affirming his right to rent in Conway.
“This is a significant win for private property owners in New Hampshire,” said 2023 New Hampshire Association of REALTORS President Ben Cushing. “The Court made clear that Mr. Kudrick is using his property for constitutionally protected residential activities.
"Government can not, and should not, arbitrarily remove a person’s fundamental property rights.”
NHAR intervened in September 2022, providing an amicus brief to the court supporting Mr. Kudrick’s right to rent his property. You can find that brief here.
The full Supreme Court opinion can be found here. Some highlights from the Court's concurring decision can be found in the quoted material below:
- “Any ambiguity arising from language chosen for the regulation of land use should be resolved in favor of vindicating a landowner’s property rights." This is as clear and unequivocal a statement as could be made about the municipal responsibility to respect private property rights.
- “It is the occupants’ use of the property, not the owner’s, that dictates how the property is being used.” Renters are using the property for residential purposes, same as the owner, i.e. cooking, sleeping, entertaining etc. This supports NHAR’s fundamental assertion that short-term rentals are a residential use of residential property.
- “The duration for which a property is used does not impact whether the property is used for residential purposes.” The court used the analogy of a sandwich shop, stating, “A sandwich shop is used as a sandwich shop whether the shop is open seasonally, for a few hours a day, or for only several days a week.” If a residence is rented for a day or a year, it doesn’t matter as long it is being used for a residential purpose.
- “Land use regulations require clarity to inform landowners of uses that are permitted and not permitted, just as criminal codes must adequately advise citizens of prohibited, criminalized conduct.” Municipalities need to be clear in their ordinance language or, as the Supreme Court suggests, that when there is no clarity, the rights of private property owners should take precedence.
For more information, contact New Hampshire Realtors CEO Bob Quinn: bob@nhar.com.