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Update on the Nigel Warren Case

October 8, 2013

keysIn our May 28, 2013 article, we explained the initial ruling in the Nigel Warren case. The initial verdict came as a shock to many, especially those familiar with Chapter 225 of 2010, the short-term rental ban law. The Environmental Control Board (ECB) verdict seemed to contradict not just what the law stated, but also the legal intent, as stated by Senator Krueger who sponsored Chapter 225 of 2010 (see our June 14, 2013 article). Immediately following the verdict, Airbnb announced that they would help Nigel through the appeals process.

In what Airbnb is calling a “huge victory” [1]  and what Senator Kruger is calling a mere “PR Victory” that doesn’t really change anything in the vacation rental world [2], a September 26th ruling by the New York City ECB Appeal Board overturned the initial Nigel Warren decision.

While it is true that the ECB found that Nigel Warren did not violate Chapter 225 of 2010 [3], its ruling does not apply to the majority of the vacation rental business. As Senator Kruger states in a statement released in response to the ECB ruling, “Airbnb may have scored a PR victory with the success of this appeal, but that’s all it is. The vast majority of Airbnb’s business in New York City — short-term rentals of apartments in residential buildings without any permanent residents present — remains unambiguously illegal.”

In the verdict, the ECB states that the ALJ had created a new test that was “wholly without support in statute, case law, or legislative history.” Additionally, the ECB held: (1) that there is nothing in law that requires that there be a personal relationship between the permanent resident and the “boarder,” “roomer,” or “lodger” (something the lower court’s ruling required); (2) that having a paying boarder staying for a few days in your apartment while one of the permanent occupants of the apartment is also there is not a violation of the law; (3) that the statutory definition of “permanent residence purpose expressly allows a paying, lawful boarder, roomer or lodger, to live a few days within the household of the permanent occupant.”

 

Despite Airbnb’s efforts to spin it otherwise, the ECB ruling does not state that one may leave and rent out their apartment to a stranger or anyone else for less than 30 days . Indeed, as Senator Krueger forcefully reminds us: in NYC most short term rentals where a permanent tenant is not home are still illegal.

To see the full verdict, go to: http://www.scribd.com/doc/171532677/City-of-New-York-v-Abe-Carrey.

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