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1) Short-term rental is a residential use; and
2) A municipality may not treat rental residential property differently from owner-occupied
residential property. “If I have a right to live in a house that I own, I have a right to rent the
house to someone else.”
Answer: It’s not a residential use. A room rented for a weekend does not become the
temporary occupant’s residence. Renting a room to a continuing sequence of guests for a weekend or a
week at a time is not the same as renting it to a tenant who resides there on a long-term basis. This is
the difference between a hotel room and an apartment.
Nor does the owner’s residing on the property keep it within the definition of a residential use.
If you buy a house and live in half of it, but convert the other half into a convenience store, or a bar, or a
gunpowder factory, it is no longer a purely residential use. Similarly, if you use it as a hotel or a bed and
breakfast, it is no longer purely a residential use.
Note: New Hampshire law (RSA 21:6-a) defines “residence” as “a person's place of abode or
domicile. The place of abode or domicile is that designated by a person as his or her principal place of
physical presence to the exclusion of all others.” When a person rents a room or a house for a weekend
or a week and then goes home, that rental is clearly not within the definition of “residence.” Further,
the meals and rooms tax statute (RSA 78-A), the hotel statute (RSA 353), and the landlord-tenant statute
(RSA 540) all recognize a difference between long-term and short-term rentals, treating the former as
residential and the latter as commercial (although they draw the line at different places—185 days, one
month, and 90 days, respectively). These statutes are not controlling for zoning purposes, but they
reflect a general recognition that a short-term rental is significantly different from a residence.
C. Limitation on authority: RSA 48-A. There is one statutory limitation on municipal authority
to regulate short-term rentals. Section 2 of the housing standards statute, which authorizes
municipalities to adopt codes to remedy substandard housing, states, “The power conferred by this
section shall not be used to impose any additional ordinances, codes, bylaws, licenses, certificates, or
other restrictions on dwellings used as a vacation rental or short-term rental.” RSA 48-A:2. (That statute
also states that, only for purposes of RSA 48-A, “vacation rental and short-term rental are residential
uses of the property and do not include a unit that is used for any nonresidential use, including retail,
restaurant, banquet space, event center, or another similar use.”)
This limitation clearly applies only to regulation under the housing standards statute. It was
enacted in 2017 specifically to prevent municipalities from using their housing codes—not their zoning
ordinances—to regulate short-term rentals. In fact, the original language of the bill that led to this
enactment, HB 654 from the 2017 session, would have severely restricted municipalities’ authority to
regulate short-term rentals through their zoning ordinances, but that language was rejected in favor of
the provisions that merely restrict the use of housing codes.
IV. Other challenges to regulation of short-term rentals
A. Constitutional challenges. Property owners in New Hampshire and elsewhere have claimed
that restrictions on short-term rentals are unconstitutional on various grounds, including equal
protection, due process, and even the federal constitution’s commerce clause and privileges and
immunities clause. These claims have been mostly unsuccessful, as they should be.