June 12, 2019
By Matt Miller
Earlier this week, Denver media breathlessly reported on the case of Alexander and Stacy Neir, who are accused of “illegally running a short-term rental scheme through Airbnb.” As a friend said when he saw the story: The horror!
To be clear: If they are guilty as charged, then what the Neirs were doing was illegal. According to the government, the couple falsely claimed two homes as primary residences in order to skirt a Denver law that only allows you to use your primary residence for short-term rentals. Lying to the government in order to obtain approval for a license is illegal.
But why should it be illegal to rent your home on a short-term basis when it’s not illegal to rent it on a long-term basis? In other words, why are the Neirs criminals at all? In reporting about the story, there is no allegation that they were running a party house or causing any nuisances for their neighbors. There is no allegation that they harmed, bothered, or inconvenienced anyone at all. They were simply using their property the way millions of Americans do: to make money by meeting the needs of travelers and other people who need a place to stay.
Restricting short-term rentals isn’t about preventing nuisances. Long-term rentals can create nuisances, too, and nobody is talking about banning them. Cities have always had the ability to police actual nuisances. So do neighbors, by bringing civil nuisance lawsuits. No, restricting short-term rentals is about prioritizing the personal preferences of politicians and a vocal minority of residents. That is why you hear so much talk about “maintaining neighborhood character” or wanting people who stay in the neighborhood to be “invested in the neighborhood.” These are all perfectly reasonable things to want, but not at the expense of violating the private property rights of other people.
The Neirs have been charged with a felony because they allegedly falsified documents listing the houses as primary residences. Their mugshots are all over local media. And reporters are writing about them as if they are hardened, Al Capone-style criminal masterminds.
The couple should not have lied about their houses in order to skirt short-term rental laws. But they should not have been forced to lie by a law that needlessly prevents them from conducting short-term rentals from their properties. There is no evidence that their rentals caused anyone any harm. They simply violated a law that never should have existed.
The city says that “[t]he challenge is that some people aren’t renting [short-term rentals] responsibly[.]” This is undoubtedly true. There have been irresponsible landlords since the beginning of time. But then why target the Neirs, to the point of taking their mugshots and charging them with a felony? Why not enforce existing nuisance laws against actual irresponsible property owners? Like other cities, Denver says that enforcing nuisance laws is difficult, yet provides no evidence supporting this claim. If someone is operating a party house, it is simple enough to send a police officer when someone complains. If the house is violating nuisance ordinances, cite the owners. That is how most laws are enforced. Police and code enforcement officers do it every day.
Thus, because it can’t be bothered to police nuisances effectively, the city has decided to target the Neirs in order to send a message to the entire home-sharing community. Perhaps a better option would be to allow short-term rentals, enact reasonable, constitutional regulations, and collect fees and taxes so that owners can operate out in the open. That way, visitors to the Mile High City can continue to enjoy everything that Denver has to offer.
Matt Miller is a Senior Attorney at the Goldwater Institute.